Kerala High Court
Emerald Cements vs The Station House Officer, Walayar ... on 15 February, 2024
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
WP(C) NO. 2467 OF 2024
PETITIONER:
EMERALD CEMENTS
NEAR KSIDC INVESTMENT ZONE, AHALIA ROAD, PAMPAMPALLAM P.O,
PALAKKAD DISTRICT, PIN-678621, REPRESENTED BY ITS MANAGING
PARTNER, S. PALANISAMY, AGED 37 YEARS, S/O. SUBRAMANI,
19/130, VENKITAPURAM, VELLIYANAI SOUTH, KARUR, TAMIL NADU,
PIN - 639118.
BY ADVS.
JACOB SEBASTIAN
WINSTON K.V
ANU JACOB
RESPONDENTS:
1 THE STATION HOUSE OFFICER, WALAYAR POLICE STATION
WALAYAR P.O, PALAKKAD DISTRICT, PIN - 678620.
2 THE CENTRE FOR INDIAN TRADE UNIONS (CITU)
KANALPIRIVU UNIT, WALAYAR P.O, PALAKKAD DISTRICT,
REPRESENTED BY ITS SECRETARY, PIN - 678620.
3 THE INDIAN NATIONAL TRADE UNION OF CONGRESS (INTUC)
KANALPIRIVU UNIT, WALAYAR P.O, PALAKKAD DISTRICT,
REPRESENTED BY ITS PRESIDENT, PIN - 678620.
*ADDL R4 THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD
A.M COMPLEX, T.B ROAD, PALAKKAD DISTRICT, PIN 678014,
REPRESENTED BY ITS DISTRICT OFFICER
*IS IMPLEADED VIDE ORDER DT. 23.1.24 IN IA 1/24.
BY ADVS.
M.D.ROSHINI
THOMAS ABRAHAM
SMT.C S SHEEJA, SR. GP.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 2467 OF 2024 2
"CR"
JUDGMENT
Emerald Cements, the petitioner herein, is a partnership firm
engaged in the manufacture of Cement. This petition is filed seeking a
direction to the 1st respondent to afford police protection to the
petitioner and their workers for effectively carrying out the operations
without any threat or obstruction from the party respondents.
2. Short facts are as under:
The petitioner has been issued with Ext.P1 certificate under the
Kerala Micro Small Medium Enterprises Facilitation Act, 2019, and
categorized as "Manufacturing Enterprise." Initiated by a cadre of
innovative young entrepreneurs aiming to forge a sustainable livelihood,
the enterprise embarked on establishing a cutting-edge cement
manufacturing facility, ensuring that the entire production process is
fully automated. The petitioner contends that from the moment raw
materials enter the premises to the final stage, where finished products
are mechanically loaded onto lorries via a conveyor belt system, the
operation is designed to minimize manual labour. It is highlighted that
materials are brought to the factory using Tipper Lorries outfitted with
mechanical aids and state-of-the-art automated machinery and
highlights the firm's commitment to a highly efficient manufacturing
process devoid of any manual headload work. It is contended that the
petitioner has two operators and two helpers who are attached to the
enterprise, which aspect is borne out from Ext. P4. It is contended that
the workforce is optimally sized to manage the packaging and loading
of cement bags, thus negating any necessity for additional manual
labor. It is also urged that the incidental work of stacking the packed
bags that tumble down from the conveyor belt into the lorry is carried
out by the attached workers. It is further asserted that the
establishment run by the petitioner will not fall under Section 2(j) of the
Kerala Headload Workers Act, 1978, and is not included in the Schedule
appended to the Act. It is also stated that the establishment has only
recently commenced operations, and the volume of business is low.
3. The petitioner asserts that the party respondents have
raised a claim that they should be provided with headload work in the
establishment. They are also demanding that they should be
compensated if the intention of the petitioner is to deprive them of their
right to carry out headload work. It is contended that the workers of
the Union trespassed into the premises on 16.1.2024 and obstructed
the work and functioning of the factory. The petitioner apprehends that
the party respondents may use force and cause harm to the petitioner
and his workers if they are not provided with work, which the petitioner
is not legally obliged to provide. Exasperated by the belligerence of the
Union Workers, the petitioner approached the official respondents and
lodged a complaint. However, they refuse to interfere with the matter.
Seeking intervention and to enable the petitioner to carry on the
manufacture of cement without obstruction from any quarters, they
have approached this Court with this writ petition.
4. The learned Standing Counsel appearing for the Board has
filed a statement controverting the contentions. It is pointed out that
the establishment run by the petitioner is situated in an area covered
under the Scheme, and there are about 31 pool workers therein. It is
further stated that the petitioner has no headload workers who are
registered under Rule 26A of the Kerala Headload Workers Rules, 1981,
for headload work in the establishment. It is stated that in that view of
the matter, only attached workers are entitled to do headload work in
the establishment.
5. Sri. Jacob Sebastian, the learned counsel, at the outset,
submitted that the petitioner is running an industry where Cement is
manufactured using modern technology. Reliance is placed on Ext.P3
series photographs to substantiate the same. It is further pointed out
that the said assertion of the petitioner is not countered in the
statement filed by the 2nd respondent. It is urged that the predominant
work in the factory is the manufacture of cement, and the stacking
work at the final stage is merely incidental. Reliance is placed on the
law laid down by a Larger Bench of this Court in Theresa Jose1, and it
is urged that the definition of "establishment" in Section 2(j) of the Act,
as an establishment specified in the Schedule and includes the precincts
thereof, has no application to the industry run by the petitioner. It is
further submitted that in view of the absence of headload work in the
establishment, the provisions of the Act will not be attracted. The
learned counsel would also rely on the observations in Bhageeratha
Theresa Jose v. Sub Inspector of Police, and Others, [2015 (1) KLT 485]
Engineering Ltd2 and Akbar P3, and it is argued that when loading
and unloading activity is carried out using mechanized devices,
unattached headload workers cannot have any legally sustainable claim
for work. It is urged that in the counter, the fact that the factory is
mechanized is not disputed. Finally, reliance is placed on the
observations made in Obrin M.J.4, and it is urged that where in an
industrial unit, headload work is only incidental to the main work, the
provisions of the Act and the Scheme will not be applicable.
6. In response, it was submitted by Sri. Thomas Abraham,
that Ext.P4 muster roll is not countersigned by the labor authorities,
and no reliance can be placed on the same. It is submitted that the
definition of the term headload worker includes persons who are
employed for stacking. The provisions of the scheme having been
extended to the area, the petitioner is bound to employ the pool
workers, contends the learned counsel.
7. I have considered the submissions and have carefully gone
through the records.
Bhageeratha Engineering Ltd v. Superintendent of Police [1999 (3) KLT 415]
Akbar P v. Sub Inspector of Police [2015 (2) KHC 523]
Obrin M.J. v Sub Inspector of Police and Others [2005 (3) KLT 861]
8. It is not disputed that the petitioner is running a
Manufacturing Enterprise and is dealing with the manufacture of
cement. Ext.P4 would disclose that there are four attached workers in
the establishment. The contention of the petitioner is that the factory is
fully mechanized from the loading of the raw materials to the
production and ejection of the packaged product to the lorry through
the conveyor belt. This contention is not disputed. All that is stated in
the counter filed by the Board is that prior to loading the materials into
the machine and for the stacking of the sacks that are pushed out
through the conveyor belt, the services of the headload workers would
be required. The contention of the petitioner is that no headload work
is involved, and the minimal work that requires manual labor, including
stacking at times, can be done by the attached workers.
9. The question is whether the Manufacturing
Enterprise of the petitioner would come within the ambit of the term
'establishment' as defined under Section 2(j) of the Act. The term
'establishment' has been defined thus:
2(j) "establishment" means an establishment specified in the
Schedule and includes the precincts thereof."
10. The Schedule of the Act reads as follows:
"1. Iron and Steel markets or shops.
2. Cloth and cotton markets or shops,
3. Grocery markets or shops.
4. Railway yards and goods sheds.
5. Establishments employing workers for loading or unloading of
goods and other operations incidental and connected thereto.
6. Vegetable markets (including onions and potatoes markets).
7. Establishments employing workers for loading or unloading of
goods and other operations incidental and connected thereto.
8. Bus stands, Boat jetties, landing places of country crafts.
9. Forest supply and sale coupes, timber, and firewood depots.
10. Quarries.
11. Markets (including fish and meat markets) and factories employing
workers, which are not covered by any other entries in this
Schedule.
12. Rubber, Tea, Coffee or Cardamom Plantations where workers are
employed or engaged for loading or unloading timber or wooden
logs in or from or to vehicle, trolly or cart.
13. Establishments employing or engaging workers for loading or
unloading Liquefied Petroleum Gas cylinders in or from, or to a
vehicle.
11. A Manufacturing Enterprise engaged in the
manufacture of cement, which does not fall within the ambit of the
term 'Factory' as defined under the Factories Act, 1948, has not been
included in the Schedule. The contention of the respondent Board is
that the petitioner would fall into Category 5 which deals with
establishments employing workers for loading or unloading of goods
and other operations incidental and connected thereto. The question of
whether workers/employees in such establishments, who are doing
work of loading and unloading along with other duties could be treated
as headload workers was considered by a full Bench of this Court in
Raghavan (supra). It was held in paragraph 21 as under:
"21. Yet another point raised before us was the case of workers
employed in the establishments, who are doing the work of
loading and un loading along with other duties. Learned counsel
for the petitioners would contend that in such circumstances, the
workers cannot be treated as head load workers coming under
the definition of that term under the Act. We do not think that
this is an issue where an answer in general can be given. It will
depend on the facts of each case. If the worker is doing loading
and unloading work regularly in the establishment, he cannot be
taken out of the purview of the Act only for the reason that he is
discharging some other duties also. On the other hand, if he is
principally employed to carry on the work other than loading and
unloading and if occasionally he does the work of loading and
unloading, it may not be possible to treat him as a head load
worker coming within the definition. But, as mentioned earlier, it
will depend on the facts of each case."
12. The principles laid above were taken note of by a
larger bench of this Court in Theresa (supra), and in paragraph Nos.
29 and 30, it was held as under:
29. We thus are of considered opinion that item No. 5 of the
Schedule is to be interpreted to be an establishment that fulfills
following three conditions:
(i) An establishment is employing workers for loading and
unloading of goods
(ii) the work of loading and unloading for which the worker is
employed, is of a predominant nature
(iii) the workers employed may also be carrying on other
operations incidental and connected thereto.
30. Paragraph 21 of the Full Bench judgment in Raghavan's case
(supra) has also stated that if principally, the workers are
employed to carry on the work other than loading and unloading,
and the loading and unloading work is only occasional, they do
not come within the definition of Headload workers. The Full
Bench has also rightly observed that whether the nature of work
of the headload worker is predominant work or not is a question
which depends on the facts of each case
13. On a careful evaluation of the manufacturing
operations conducted by the petitioner, which predominantly utilizes
automated machinery throughout its entire process, it becomes
unequivocally clear that the role of headload work within the
manufacturing enterprise is non-existent. The tasks performed by the
helpers affiliated with the enterprise are merely incidental to its core
operations. From this perspective, it is evident that the statutory
provisions of the 1978 Act, alongside its ancillary Rules and Scheme,
are inapplicable to such employees. Consequently, it follows that the
employer is under no obligation whatsoever to hire a headload
worker--let alone one registered with the 3rd respondent Union--for
the execution of incidental stacking tasks within the Manufacturing
Enterprise. Moreover, it is untenable for the respondent parties to assert
any presumed entitlement to deploy their labor for stacking activities
within the petitioner's facility.
14. Resultantly, this writ petition is disposed of as
follows:
a) I hold that the activity of stacking within the petitioner's
Manufacturing Enterprise is strictly ancillary or incidental to its
predominant work, namely, the automated manufacturing of
Cement.
b) The attached workers of the petitioner are entitled to perform
necessary stacking operations ancillary to their main duties as
helpers. Engaging in such incidental stacking tasks does not
qualify these individuals as Headload workers.
c) Consequently, respondents 2 and 3 are not entitled to demand
that their workers shall be engaged for incidental stacking
tasks within the Enterprise.
d) If any interference is caused, hindering the smooth operation
of the Manufacturing Enterprise, the 1st respondent shall
provide adequate protection to the petitioner, its workforce,
and the vehicles engaged in the transportation of goods.
Sd/-
RAJA VIJAYARAGHAVAN V
sru JUDGE
APPENDIX OF WP(C) 2467/2024
PETITIONER'S EXHIBITS
Exhibit-P1 A TRUE COPY OF THE ACKNOWLEDGEMENT CERTIFICATE
DATED 23.12.2021 ISSUED BY THE DEPARTMENT OF
INDUSTRIES AND COMMERCE, GOVERNMENT OF KERALA.
Exhibit-P2 A TRUE COPY OF THE COMPLAINT DATED 16.01.2024
SUBMITTED BY THE GENERAL MANAGER OF THE
ESTABLISHMENT BEFORE THE 1ST RESPONDENT.
Exhibit-P3 THE TRUE PHOTOGRAPHS OF THE MECHANICAL FACILITY
IN THE PETITIONERS FACTORY.
Exhibit-P4 A TRUE COPY OF THE RELEVANT PAGE OF THE MUSTER
ROLL OF THE ESTABLISHMENT.
