Kerala High Court
Shaji Joseph vs The District Labour Officer, Appellate ... on 24 September, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
2024:KER:70726
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 24TH DAY OF SEPTEMBER 2024 / 2ND ASWINA, 1946
WP(C) NO. 26304 OF 2024
PETITIONERS:
1 SHAJI JOSEPH
AGED 59 YEARS, S/O.VARGHESE IYPE,
MANAGING PARTNER, RUBBER POINT,
MARKET ROAD, THODUPUZHA, IDUKKI,
RESIDING AT KOCHUKUDI HOUSE,
EAST KALOOR P.O, THODUPUZHA PIN - 685584.
2 NOBY JOSE
AGED 37 YEARS, S/O.JOSE V.C,
VALIYILKUTHANPURAYIL, UDUMBANNOOR P.O,
IDUKKI, PIN - 685595.
3 JOSEPH JOSEPH
AGED 59 YEARS, S/O.DEVASIA JOSEPH,
VEMBILLIL HOUSE, PERAMANGALAM P.O,
KALOOR, ENANALLOR, IDUKKI, PIN - 686668.
4 SANJAY GOPE
AGED 23 YEARS, S/O.SOMARAJ GOPE,
RANI CHACHO, TANGAR RANCHI,
JHARKHAND, PIN - 835214.
5 RITESH GOPE
AGED 23 YEARS, S/O.ASHOK GOPE,
VILLRANICHACHO P.O, TANGAR, KARKAT,
CHANHO RANCHI, JHARKHAND, PIN - 835214.
6 PRAVEEN P.N
AGED 37 YEARS, S/O.P.N.NARAYANAN,
PARAPURAKKAL (H),KOOVAKKANDAM P.O,
VELLIYAMATTOM, KALAYANTHANI,
IDUKKI, PIN - 685588.
2024:KER:70726
W.P.(C) No.26304/2024
:2:
BY ADVS.
C.S.AJITH PRAKASH
T.K.DEVARAJAN
BABU M.
ANCY THANKACHAN
M.B.SOORI
XAVIER K.K.
SRUTHY UNNIKRISHNAN
KRISHNENDU.D
RESPONDENTS:
1 THE DISTRICT LABOUR OFFICER, APPELLATE AUTHORITY
UNDER RULE 26© OF THE KERALA HEADLOAD WORKERS
RULES 1981, OFFICE OF THE DISTRICT LABOUR
OFFICER, THODUPUZHA IDUKKI PIN - 685585.
2 THE ASSISTANT LABOUR OFFICER / THE REGISTERING
AUTHORITY UNDER RULE 26 A OF THE KERALA HEADLOAD
WORKERS RULES, 1981, OFFICE OF THE ASSISTANT
LABOUR OFFICER, THODUPUZHA,
IDUKKI, PIN - 685585.
3 THE CHAIRMAN
KERALA HEADLOAD WORKERS WELFARE BOARD OFFICE OF
THE CHAIRMAN, KERALA HEADLOAD WORKERS WELFARE
BOARD, THODUPUZHA MOOLAMATTOM ROAD,
THODUPUZHA, PIN - 685584.
BY ADVS.
SRI.ANIMA M, GOVERNMENT PLEADER
SRI.S.KRISHNA MOORTHY(ERNAKULAM)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 14.08.2024, THE COURT ON 24.09.2024 DELIVERED THE
FOLLOWING:
2024:KER:70726
W.P.(C) No.26304/2024
:3:
CR
N. NAGARESH, J.
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W.P.(C) No.26304 of 2024
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Dated this the 24th day of September, 2024
JUDGMENT
~~~~~~~~~
The 1st petitioner is doing business in
Thodupuzha. The Shop deals with bio manure, pesticides,
fertilizers and other general items necessary for agriculture,
plantation and cultivation. The petitioner has wholesale and
retail outlets and Godown. Goods bought from manufacturers /
dealers are unloaded and stored at the Godown. Part of the
goods are brought to the outlet. Goods are also delivered from
the Godown and supplying at places required by the
customers. The petitioners 2 to 6 are headload workers
attached to the establishment of the petitioner.
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2. The petitioners state that when the Headload
Workers Scheme was operationalised in the area, the pool
workers demanded entire loading unloading work of all
establishments. There arose certain disputes and in a meeting
convened by Merchants Association with all stakeholders, it
was agreed that pool workers will be engaged for unloading
the in-bound goods brought to godowns and shops. The rest
of the work will be carried out by the attached workers of
establishment owners.
3. The petitioners 2 to 6 applied for registration
under Rule 26A of the Kerala Headload Workers Rules, 1981.
The Registering Authority, however, rejected the applications
as per Ext.P43 order dated 01.11.2023. The petitioners
thereupon filed Ext.P44 appeal. The Appellate Authority
rejected the appeal as per Ext.P46 holding that loading-
unloading work in the establishment of the petitioner is being
done by the pool workers and grant of registration to attached
workers will result in loss of employment to pool workers. The
Appellate Authority further held that petitioners 2 to 6 are not
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doing predominantly loading-unloading work. The petitioners
are aggrieved by Ext.43 order of the Registering Authority
rejecting the applications for Rule 26A registration and the
Ext.P46 order of the Appellate Authority rejecting their appeal.
4. Government Pleader representing
respondents 1 and 2 and the Standing Counsel representing
the Kerala Headload Workers Welfare Board Office resisted
the writ petition. The respondents pointed out that on site
inspection by the Registering Authority, it was found that the
loading-unloading work in the establishment is being carried
out by the pool workers. The 1 st petitioner had registered his
establishment with the Headload Workers Welfare Board for
availing the services of the pool workers. It was also found that
petitioners 2 to 6 are doing the work of sales and that the
occasional loading unloading work done by the petitioners is 2
to 6, is not the work predominantly done by them.
5. The respondents pointed out that in the
judgment in Theresa Jose v. Sub Inspector of Police [2015
(1) KLT 485], this Court has held that if an employee is not
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doing predominantly loading and loading work, he cannot be
brought within the definition of headload worker. Therefore,
the Registering Authority as well as the Appellate Authority
where justified in rejecting the application submitted by
petitioners 2 to 6 for registration under Rule 26A. The writ
petition is therefore liable to be dismissed, urged the
respondents.
6. I have heard the learned Leonard counsel for
the petitioners, the learned Government Pleader representing
respondents 1 and 2 and the learned Standing Counsel
representing the 3rd respondent-Chairman of the Kerala
Headload Workers Welfare Board.
7. The petitioners state that petitioners 2 to 6
are headload workers attached to the establishment of the 1 st
petitioner. The 1st petitioner is maintaining all relevant records
which would indicate that the petitioners are headload workers
attached to the establishment. There was an oral agreement
between the Merchant Association and other stakeholders,
whereby it was agreed that in-bound unloading work of the
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establishments would be carried out by the pool workers and
the employers will be free to engage their attached workers for
carrying out other loading-unloading works. Therefore,
petitioners 2 to 6 are entitled to get registration under Rule
26A. Petitioners 2 to 6 would assert that they are
predominantly doing loading-unloading work in the
establishment of the 1st petitioner.
8. Respondents 1 and 2 rejected the
applications for Rule 26A registration finding that the 1 st
petitioner is utilising the services of pool workers and is paying
for the same, for carrying out loading-unloading activities in
the establishment. Petitioners 2 to 6 are not doing loading-
unloading work predominantly in the establishment. Grant of
Rule 26A cards to petitioners 2 to 6 would cause loss of
employment opportunity of the pool workers. Now, l shall
examine the legality and sustainability of the reasons for
rejection of the applications of petitioners 2 to 6 for
registration, as reflected in Exts.P43 and P46.
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9. The finding of the Registering Authority is
that the pool workers under the Kerala Headload Welfare
Board are carrying out the loading-unloading work of the 1 st
petitioner's establishment and hence, petitioners 2 to 6 are not
entitled to Rule 26A registration. It is the specific case of the
petitioners that when a dispute arose consequent to the
operationalisation of the Headload Workers Scheme in the
area, the Merchants Association intervened and an agreement
was arrived at. As per this agreement, the pool workers were
to unload the goods coming to the establishments in the area
and the remaining loading-unloading work in the course of
sales can be carried out by attached headload workers. This
argument of the petitioner is quoted by the Registering
Authority in Ext.P43. The Headload Workers Welfare Board
has no contrary argument, as can be seen from Ext.P43.
Therefore, the Registering Authority and Appellate Authority
committed a mistake in arriving at a conclusion that all loading
and unloading work in the establishment of the 1 st petitioner is
carried out by the pool workers.
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10. Another reason advanced by the Registering
Authority and the Appellate Authority for declining headload
workers registration to petitioners 2 to 6, is that petitioners 2 to
6 are not doing headload work / loading unloading work in the
establishment predominantly and therefore, petitioners 2 to 6
cannot be treated as headload workers. The suggestion is that
petitioners 2 to 6 are salesmen doing loading-unloading work
incidentally.
11. Exts.P1 to P5 are applications submitted by
the petitioners for registration as headload workers. The
applications would indicate that petitioners 2 to 6 claim to be
working as headload workers for various periods since 2016.
Exts.P7 to P14 are wage slips issued to other employees
working in the establishment. Exts.P7 to P14 would show that
apart from petitioners 2 to 6, there are other employees
working as Manager, Accountant, Clerk, Driver and
Salesman / Sales women. Exts.P9, P12 and P13 are wage
slips issued to three other employees working as Salesmen.
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12. Exts.P15 to P34 are copies of statutory wage
slips issued to petitioners 2 to 6 under Rule 27(2) of the Kerala
Headload Workers Rules, 1981. Exts.P35 to P38 are extracts
of Form-V Register maintained in the establishment under
Rule 27(i). Exts.P35 to P38 would show the duration of work
and wages paid to the petitioners as headload workers.
13. Exts.P39 to to P41 are movement analysis of
various articles sold outward from the establishment on
27.09.2023. Exts.P39 to P41 would establish that there is a
considerable amount of outward movement of goods from the
establishment on a daily basis. It is not disputed that goods
supplied from the shop and Godown of the 1st petitioner are
loaded and moved by petitioners 2 to 6. The contention of the
respondents is that loading and unloading work is not the
predominant work done by petitioners 2 to 6.
14. Considering the nature of business and
volume of sales in the establishment, considering Exts.P1 to
P5 and Exts.P7 to P38 documents, considering the fact that
goods / articles are supplied from Shop as well as Godown of
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the establishment and considering the fact that the Shop has
three other separate Salesmen designated and working as
such on permanent basis, there is no reason to hold that
petitioners 2 to 6 are working as Salesmen or to hold that they
are predominantly doing work other than loading and
unloading.
15. The finding of the Registering Authority that
the unloading of in-bound goods done by the pool workers
constitute substantial loading-unloading work, cannot be
accepted. Admittedly petitioners 2 to 6 are doing loading work
after sales. Delivery of goods are done from the Godown also.
Therefore, there must necessarily exist substantial loading /
headload work in the establishment, both in the Shop and the
Godown. While the facts being so, the bald statements of the
Registering and Appellate authorities that on enquiry they are
convinced that petitioners 2 to 6 are doing loading-unloading
work along with sales work, cannot be accepted. The finding
of the appellate authority that the petitioners 2 to 6 are loading
only the goods unloaded by the pool workers depending on
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the request of the customers and hence they should be
treated as doing predominantly sales work, is perverse.
16. Yet another reason extended by respondents
2 and 3 for declining registration is that grant of registration to
the petitioners would adversely affect the income of pool
workers and financial position of the Board. It is to be noted
that even at present, except unloading of goods brought to the
establishment for sale, rest of the loading-unloading work is
being carried out by the petitioners 2 to 6. There is an oral
agreement in this regard which is being followed. Therefore,
grant of registration to the petitioners 2 to 6 will not adversely
affect the income of pool workers.
17. Even otherwise, marginal decrease in the
income of pool workers cannot be a ground to deny
registration to attached headload workers. This is because an
attached headload worker has also a fundamental right to
carry on any occupation, under Article 19(1)(g) of the
Constitution of India. Any unreasonable restriction on the said
right cannot stand the scrutiny of law.
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18. For all the aforementioned reasons, the
petitioners are entitled to succeed. Exts.P43 and P46 are set
aside. The 2nd respondent is directed to grant registration
under Rule 26A of the Kerala Headload Workers Rules, 1981
to petitioners 2 to 6, within one month.
The writ petition is allowed as above.
Sd/-
N. NAGARESH, JUDGE
aks/23.09.2024
2024:KER:70726
APPENDIX OF WP(C) 26304/2024
PETITIONER'S EXHIBITS
Exhibit P1 A TRUE COPY OF THE RULE 26A ONLINE
APPLICATION SUBMITTED BY THE 2ND
PETITIONER DATED 28-07-2023 BEFORE THE
2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE 26A CARD ONLINE
APPLICATION SUBMITTED BY THE 3RD
PETITIONER DATED 28-07-2023 BEFORE THE
2ND RESPONDENT
Exhibit P3 A TRUE COPY OF THE 26A CARD ONLINE
APPLICATION SUBMITTED BY THE 4TH
PETITIONER DATED 01-08-2023 BEFORE THE
2ND RESPONDENT
Exhibit P4 A TRUE COPY OF THE 26A CARD ONLINE
APPLICATION SUBMITTED BY THE 5TH
PETITIONER DATED 28-07-2023 BEFORE THE
2ND RESPONDENT
Exhibit P5 A TRUE COPY OF THE 26A CARD ONLINE
APPLICATION SUBMITTED BY THE 6TH
PETITIONER DATED 05-08-2023 BEFORE THE
2ND RESPONDENT
Exhibit P6 A TRUE COPY OF THE ONLINE REGISTRATION
CERTIFICATE ISSUED BY THE LABOUR
OFFICER UNDER THE SHOP AND COMMERCIAL
ESTABLISHMENT ACT DATED 31-10-2001
Exhibit P7 A TRUE COPY OF THE WAGE SLIP GENERATED
UNDER WPS FOR THE MANAGER MR.BIJU
C.GEORGE, FOR THE MONTH OF OCTOBER
Exhibit P8 A TRUE COPY OF THE WAGE SLIP GENERATED
UNDER WPS FOR THE ACCOUNTANT MR.GEORGE
PAUL FOR THE MONTH OF OCTOBER 2023
Exhibit P9 A TRUE COPY OF THE WAGE SLIP GENERATED
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UNDER WPS FOR THE SALESMAN MR.SHIBIN
K.ALEX FOR THE MONTH OF OCTOBER 2023
Exhibit P10 A TRUE COPY OF THE WAGE SLIP GENERATED
UNDER WPS FOR THE CLERK/ACCOUNTANT
MR.SUMAL BIJU FOR THE MONTH OF OCTOBER
Exhibit P11 A TRUE COPY OF THE WAGE SLIP GENERATED
UNDER WPS FOR THE DRIVER MR.ARUN K.R
FOR THE MONTH OF OCTOBER 2023
Exhibit P12 A TRUE COPY OF THE WAGE SLIP GENERATED
UNDER WPS FOR THE SALESMAN MR.JOHNY
K.O FOR THE MONTH OF OCTOBER 2023
Exhibit P13 A TRUE COPY OF THE WAGE SLIP GENERATED
UNDER WPS FOR THE SALESMAN/SALESWOMEN
SIMI TERESA JOSE FOR THE MONTH OF
OCTOBER 2023
Exhibit P14 A TRUE COPY OF THE WAGE SLIP GENERATED
UNDER WPS FOR THE CLERK MEGHA MOHAN
FOR THE MONTH OF OCTOBER 2023
Exhibit P15 TRUE COPY OF THE WAGE SLIP OF THE 2ND
PETITIONER FOR THE PERIOD FROM 03-04-
2023 TO 08-04-2023 MAINTAINED UNDER
27(2)
Exhibit P16 TRUE COPY OF THE WAGE SLIP OF THE 2ND
PETITIONER FOR THE PERIOD FROM 10-04-
2023 TO 15-04-2023 MAINTAINED UNDER
27(2)
Exhibit P17 TRUE COPY OF THE WAGE SLIP OF THE 2ND
PETITIONER FOR THE PERIOD FROM 17-04-
2023 TO 22-04-2023 MAINTAINED UNDER
27(2)
Exhibit P18 THE WAGE SLIP OF THE 2ND PETITIONER
FOR THE PERIOD FROM 24.04.2023 TO 29-
04-2023 MAINTAINED UNDER 27(2)
Exhibit P19 TRUE COPY OF THE WAGE SLIP OF THE 3RD
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PETITIONER FOR THE PERIOD FROM 10-04-
2023 TO 15-04-2023 MAINTAINED UNDER
27(2)
Exhibit P20 TRUE COPY OF THE WAGE SLIP OF THE 3RD
PETITIONER FOR THE PERIOD FROM 17-04-
2023 TO 22-04-2023 MAINTAINED UNDER
27(2)
Exhibit P21 TRUE COPY OF THE WAGE SLIP OF THE 3RD
PETITIONER FOR THE PERIOD FROM 24-04-
2023 TO 29-04-2023 MAINTAINED UNDER
27(2)
Exhibit P22 TRUE COPY OF THE WAGE SLIP OF THE 3RD
PETITIONER FOR THE PERIOD FROM 01-05-
2023 TO 06-05-2023 MAINTAINED UNDER
27(2)
Exhibit P23 TRUE COPY OF THE WAGE SLIP OF THE 4TH
PETITIONER FOR THE PERIOD FROM 05-06-
2023 TO 10-06-2023 MAINTAINED UNDER
27(2)
Exhibit P24 TRUE COPY OF THE WAGE SLIP OF THE 4TH
PETITIONER FOR THE PERIOD FROM 12-06-
2023 TO 17-06-2023 MAINTAINED UNDER
27(2)
Exhibit P25 TRUE COPY OF THE WAGE SLIP OF THE 4TH
PETITIONER FOR THE PERIOD FROM 19-06-
2023 TO 24-06-2023 MAINTAINED UNDER
27(2)
Exhibit P26 TRUE COPY OF THE WAGE SLIP OF THE 4TH
PETITIONER FOR THE PERIOD FROM 26-06-
2023 TO 30-06-2023 MAINTAINED UNDER
27(2)
Exhibit P27 TRUE COPY OF THE WAGE SLIP OF THE 5TH
PETITIONER FOR THE PERIOD FROM 05-06-
2023 TO 10-06-2023 MAINTAINED UNDER
27(2)
Exhibit P28 TRUE COPY OF THE WAGE SLIP OF THE 5TH
2024:KER:70726
PETITIONER FOR THE PERIOD FROM 12-06-
2023 TO 17-06-2023 MAINTAINED UNDER
27(2)
Exhibit P29 TRUE COPY OF THE WAGE SLIP OF THE 5TH
PETITIONER FOR THE PERIOD FROM 19-06-
2023 TO 24-06-2023 MAINTAINED UNDER
27(2)
Exhibit P30 . TRUE COPY OF THE WAGE SLIP OF THE 5H
PETITIONER FOR THE PERIOD FROM 26-06-
2023 TO 30-06-2023 MAINTAINED UNDER
27(2)
Exhibit P31 TRUE COPY OF THE WAGE SLIP OF THE 6TH
PETITIONER FOR THE PERIOD FROM 03-04-
2023 TO 08-04-2023 MAINTAINED UNDER
27(2)
Exhibit P32 . TRUE COPY OF THE WAGE SLIP OF THE
6TH PETITIONER FOR THE PERIOD FROM 10-
04-2023 TO 15-04-2023 MAINTAINED UNDER
27(2)
Exhibit P33 TRUE COPY OF THE WAGE SLIP OF THE 6TH
PETITIONER FOR THE PERIOD FROM 17-04-
2023 TO 24-04-2023 MAINTAINED UNDER
27(2)
Exhibit P34 TRUE COPY OF THE WAGE SLIP OF THE 6TH
PETITIONER FOR THE PERIOD FROM 24-04-
2023 TO 29-04-2023 MAINTAINED UNDER
27(2)
Exhibit P35 . TRUE COPY OF THE FORM V MAINTAINED
BY THE 1ST PETITIONER FOR THE PERIOD
FROM 05-06-2023 ENDING TO 10-06-2023
OF PETITIONERS 2 TO 6
Exhibit P36 TRUE COPY OF THE FORM V MAINTAINED BY
THE 1ST PETITIONER FOR THE PERIOD FROM
12-06-2023 ENDING TO 17-06-2023 OF
PETITIONERS 2 TO 6
Exhibit P37 TRUE COPY OF THE FORM V MAINTAINED BY
2024:KER:70726
THE 1ST PETITIONER FOR THE PERIOD FROM
19-06-2023 ENDING TO 24-06-2023 OF THE
PETITIONERS 2 TO 6
Exhibit P38 TRUE COPY OF THE FORM V MAINTAINED BY
THE 1ST PETITIONERS FOR THE PERIOD
FROM 26-06-2023 ENDING TO 30-06-2023
OF PETITIONERS 2 TO 6
Exhibit P39 A TRUE COPY OF THE PESTICIDE MOVEMENT
SHEET DATED 27-9-2023 IN THE
‘RUBBER POINT'
Exhibit P40 A TRUE COPY OF THE GENERAL ITEMS,
MOVEMENT SHEET DATED 27-9-2023 IN THE
‘RUBBER POINT'
Exhibit P41 A TRUE COPY OF THE FERTILIZER MOVEMENT
SHEET DATED 27-9-2023 IN THE
‘RUBBER POINT'
Exhibit P42 A TRUE COPY OF THE WRITTEN SUBMISSION
MADE BY THE 1ST PETITIONER TO THE
REGISTERING AUTHORITY IS DATED 22-09-
Exhibit P43 A TRUE COPY OF THE ORDER NO.193/2023
DATED 01-11-2023 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONERS
Exhibit P44 TRUE COPY OF THE APPEAL MEMORANDUM
FILED BY THE PETITIONERS BEFORE THE
APPELLATE AUTHORITY DATED 02.01.2024
Exhibit P45 A TRUE COPY OF THE LETTER NO B-16/2024
DATED 19.01.2024 ISSUED BY THE
CHAIRPERSON TO THE DISTRICT LABOUR
OFFICER
Exhibit P46 A TRUE COPY OF THE ORDER NO. IR
143/2022 DATED 30.03.2024, ISSUED BY
THE APPELLATE AUTHORITY UNDER THE
RULES, 1981
