High Court of KeralaSingle Judge2016-12-16Writ petition dismissed. The petition challengi...

A. Basheer v. The District Labour Officer, Palakkad and Others

Case / Petition Number:WP(C).No. 37884 of 2016 (I)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhamed Mustaque
Judgment Date: 2016-12-16
Court Decision / Holding: Writ petition dismissed. The appellate order upholding the registration of respondents 4–7 under Rule 26A is sustained; the Court reiterates the obligation to register attached workers and upholds the interpretation of the scheme under the Kerala Headload Workers Rules.
Final Disposition: Writ petition dismissed. The petition challenging the appellate order is dismissed; registration of attached workers under Rule 26A stands.”} } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } }}}**The final JSON is above. If any fields need to be adjusted or expanded, I can revise accordingly.** } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } }}}

Parties to the Case

Appellants / Petitioners

A. Basheer

Respondents

The District Labour Officer, Palakkad
State of Kerala, represented by the Principal Secretary to Government, Labour Department, Thiruvananthapuram-695 001
K.V. Ismail, Managing Partner, K.V. Steels and Building Materials, Chathannur
Anil Kumar, 15/148A, Chathannur P.O., Palakkad
Nandalal, 15/148A, Chathannur P.O., Palakkad
Pavankumar, 15/148A, Chathannur P.O., Palakkad
Mukesh, 15/148A, Chathannur P.O., Palakkad
The Deputy Labour Commissioner, Palakkad

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T.A. Shaji (Senior Advocate)
• Smt. Namitha Jyothish
• Sri. V. Vincent Didacose
• Sri. Athul Shaji

Counsels for Respondents

• Sri S. Gopinathan
• Sri V. J. James
• Sri K. A. Hazan
• Smt. M. M. Fathima Jaleena
• Sri K. R. Sajith
• Sri K. P. Wilson
• Sri Arun Paul (Kaprassery)

Case Synopsis & Summary

Petitioner A. Basheer, an unattached worker in Chathannoor, Palakkad district, challenged the registration of respondents 4 to 7 as attached workers under Rule 26A of the Kerala Headload Workers Rules, in the establishment run by the 3rd respondent. The Assistant Labour Officer rejected registration (Ext.P1) and, on appeal, the District Labour Officer allowed it. The petitioner argued two points: (i) the identity of respondents 4 to 7 was questionable; (ii) in a scheme-covered area, unattached workers have primacy for engagement. The respondents contended the identity cards issued to respondents 4 to 7 establish their identity, and that unattached workers do not enjoy primacy since registration is governed by Rule 26A and ensures attached workers can be engaged. The Court held that once the registering authority is satisfied as to identity, it cannot be questioned by a third party. On the second issue, the Court relied on Gangadharan CP v Abdul Nasir and others (I.L.R. 2016 (4) Kerala 702), which holds that while the area scheme enables the employer to engage both attached and own workers, registration under Rule 26A is obligatory for attached workers. In light of these authorities, the writ petition is dismissed, leaving the appellate order intact. It was noted that Ext.P7 had been considered and rejected; no direction to reconsider is warranted. The decision reiterates the statutory aim to regulate loading/unloading operations and balance employer rights with regulatory compliance.

Provisions of Law Cited

Rule 26A of the Kerala Headload Workers RulesArticle 19(1)(g) of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends two main points: (i) the identity of respondents 4–7 is questionable; (ii) in a scheme-covered area, unattached workers have primacy for engagement. He also emphasizes that the registration decision impacts the rights and livelihood of an unattached worker in a regulated scheme area.

Contentions of Respondents

The respondents submit that the identity cards of respondents 4–7 verify their identity and that unattached workers do not have an unfettered primacy for engagement; registration under Rule 26A is the statutory mechanism to regulate loading/unloading operations within a scheme area, and employers may engage their own workers or obtain registration for attached workers as required.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Gangadharan, C.P. and another v. Abdul Nasir and others	I.L.R.2016 (4) Kerala 702	Positive	Division Bench held that while the area scheme may permit engagement of own and attached workers, registration under Rule 26A is obligatory for attached workers; the present case relies on and follows this principle.
Rajeev's case	2010 (4) K.L.T. 783	Positive	Single Benches have held that the registering authority must grant registration to attached workers; the present decision aligns with this precedent.
Majeed's case	2015 (1) K.L.T. 750	Positive	Part of binding precedents cited in support of mandatory registration under Rule 26A for attached workers.
Alfred Thomas v. State of Kerala and others	2015 (5) K.H.C. 275	Positive	Followed as part of the series of decisions upholding rights/registration framework under the statute.
Muhammed Shafeek's case	2015 (1) K.L.T. 314	Positive	Followed to support the interpretation of registered attached workers within the scheme.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938** ## **WP(C).No. 37884 of 2016 (I)** **----------------------------** **PETITIONER(S): -----------------------** **A. BASHEER, AGED 40, S/O. MUHAMMED, ACHARATH HOUSE, CHATHANNUR P.O., THIRUMITTAKODE, PALAKKAD DISTRICT.** **BY ADVS.SRI.T.A.SHAJI, SENIOR ADVOCATE. SMT.NAMITHA JYOTHISH, SRI.V.VINCENT DIDACOSE, SRI.ATHUL SHAJI.** |**RESPONDENT(S):**|**RESPONDENT(S):**| |---|---| |**--------------------------**|| |**1.**|**THE DISTRICT LABOUR OFFICER,**| ||**PALAKKAD, PIN-678 001.**| |**2.**|**STATE OF KERALA, REPRESENTED BY**| ||**THE PRINCIPAL SECRETARY TO GOVERNMENT,**| ||**LABOUR DEPARTMENT, THIRUVANANTHAPURAM-695 001.**| |**3.**|**K.V. ISMAIL, MANAGING PARTNER,**| ||**K.V. STEELS AND BUILDING MATERIALS,**| ||**CHATHANNUR P.O., PALAKKAD, PIN-679 535.**| |**4.**|**ANIL KUMAR, 15/148A, CHATHANNUR P.O.,**| ||**PALAKKAD, PIN-679 535.**| |**5.**|**NANDALAL, 15/148A,**| ||**CHATHANNUR P.O., PALAKKAD, PIN-679 535.**| |**6.**|**PAVANKUMAR, 15/148A,**| ||**CHATHANNUR P.O., PALAKKAD, PIN-679 535.**| |**7.**|**MUKESH, 15/148A,**| ||**CHATHANNUR P.O., PALAKKAD, PIN-679 535.**| **WP(C).No. 37884 of 2016 (I)** **8. THE DEPUTY LABOUR COMMISSIONER, PALAKKAD, PIN-678 001.** **R1 & R2 BY SR. GOVT. PLEADER SRI.S. GOPINATHAN. R3 BY ADVS. SRI.V.J.JAMES, SRI.K.A.HAZAN, SMT.M.M.FATHIMA JALEENA. R4 TO R6 BY ADVS. SRI.K.R.SAJITH, SRI.K.P.WILSON, SRI.ARUN PAUL (KAPRASSERY).** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 37884 of 2016 (I)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT P1- THE TRUE COPY OF THE ORDER NO.HL 11/16 DATED 18/07/2016 OF THE ASSISTANT LABOUR OFFICER.** - **EXHIBIT P2- TRUE COPY OF THE ORDER NO.C4213/2016 DATED 07/09/2016 OF THE 1ST RESPONDENT.** - **EXHIBIT P3- TRUE COPY OF THE IDENTITY CARD DATED 27/09/2016 ISSUED TO THE 4TH RESPONDENT.** - **EXHIBIT P4- TRUE COPY OF THE IDENTITY CARD DATED 27/09/2016 ISSUED TO THE 5TH RESPONDENT.** - **EXHIBIT P5- TRUE COPY OF THE IDENTITY CARD DATED 27/09/2016 ISSUED TO THE 6TH RESPONDENT.** - **EXHIBIT P6- TRUE COPY OF THE IDENTITY CARD DATED 27/09/2016 ISSUED TO THE 7TH RESPONDENT.** - **EXHIBIT P7- TRUE COPY OF THE REQUEST DATED 07/10/2016 SUBMITTED BY THE CHAIRMAN, KERALA HEAD LOAD WORKERS WELFARE FUND BOARD, SUB OFFICE, KOOTTANAD BEFORE THE 8TH RESPONDENT.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R3A COPY OF THE APPEAL PETITION DATED 08/08/2016 FILED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT.** - **EXT.R3B COPY OF THE INTERIM ORDER IN WP(C).NO.34431/2016 GRANTING POLICE PROTECTION TO THE 3RD RESPONDENT.** **EXT.R3C COPY OF THE LICENSE NO.A7-07/2016-17 DATED 04/04/2016 FROM THE TIRUMITTAKODU GRAMA PANCHAYATH.** - **EXT.R3D COPY OF THE CERTIFICATE NO.32091112168 GRANTING TIN NUMBER FROM THE COMMERCIAL TAXES DEPARTMENT.** **EXT.R3E COPY OF THE CERTIFICATE OF REGISTRATION NO.091070060220 UNDER THE KERALA SHOPS AND COMMERCIAL ESTABLISHMENT ACT RECEIVED FROM THE ASST. LABOUR OFFICER.** **EXT.R3F COPY OF THE MATHRUBHOOMI ON 04/11/2016 DAILY.** **EXT.R3G COPY OF THE APPLICATION IN FORM IX FOR REGISTRATION DATED 13/06/2016 FILED BY ANILKUMAR.** **EXT.R3H COPY OF THE APPLICATION IN FORM IX FOR REGISTRATION DATED 13/06/2016 FILED BY NANDALAL.** **....2/-** ## **WP(C).No. 37884 of 2016 (I)** **EXT.R3I COPY OF THE APPLICATION IN FORM IX FOR REGISTRATION DATED 13/06/2016 FILED BY PAVAN KUMAR.** - **EXT.R3J COPY OF THE APPLICATION IN FORM IX FOR REGISTRATION DATED 13/06/2016 FILED BY MUKESH.** - **EXT.R3K COPY OF THE SALES INVOICE FOR THE MONTH OF JULY 2016 SUBMITTED BEFORE THE COMMERCIAL TAX DEPARTMENT.** - **EXT.R3L COPY OF THE FIR NO.0414 DATED 01/11/2016 BEFORE THE CHALISSERY POLICE STATION.** - **EXT.R3M COPY OF THE PRO-FORMA ALONG WITH AADHAR CARD NO.269942280429 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE CHALISSERY POLICE THROUGH THE 3RD RESPONDENT.** - **EXT.R3N COPY OF THE PRO-FORMA ALONG WITH COPY OF ELECTION IDENTITY CARD NO.AZT0673261 OF 5TH RESPONDENT, NANDA LAL SUBMITTED BEFORE THE CHALISSERY POLICE THROUGH THE 3RD RESPONDENT.** - **EXT.R3O COPY OF THE PRO-FORMA ALONG WITH ELECTION IDENTITY CARD AZT 0174086 FILED BY THE 6TH RESPONDENT PAWAN KUMAR BEFORE THE CHALISSERY POLICE THROUGH THE 3RD RESPONDENT.** - **EXT.R3P COPY OF THE PROFORMA FILED ALONG WITH COPY OF THE ELECTION IDENTITY CARD NO.CARD AZT 2408342 FILED BY THE 7TH RESPONDENT, MUKESH BEFORE THE CHALISSERY POLICE THROUGH THE 3RD RESPONDENT.** - **EXT.R3Q COPY OF THE LETTER DATED 03/12/2016 FILED BY THE 3RD RESPONDENT BEFORE THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 8TH RESPONDENT.** - **EXT.R3R COPY OF THE LETTER DATED NO.C318/2016 DATED 02/11/2016 ADDRESSED TO THE PETITIONER, ISSUED TO THE 3RD RESPONDENT BY THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 8TH RESPONDENT.** - **EXT.R6A COPY OF THE APPEAL PETITION DATED 08/08/2016 FILED BY THE 4TH TO 7TH RESPONDENTS.** - **EXT.R6B COPY OF THE PROFORMA FILED BY THE 6TH RESPONDENT PAWANKUMAR BEFORE THE POLICE.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **A.MUHAMED MUSTAQUE, J. ============================== W.P.(C).No.37884 of 2016 ============================== Dated this, the 16[th] day of December, 2016.** ## **J U D G M E N T** The petitioner is an unattached worker in Chathannoor, Palakkad District. He approached this Court challenging registration given to the respondents 4 to 7 under the establishment of 3[rd] respondent. Respondents 4 to 7 applied for registration under the 3[rd] respondent under Rule 26A of the Kerala Headload Workers Rules. This was rejected by Assistant Labour Officer, as per Ext.P1 dated 18.07.2016. Thereafter, an appeal was preferred by the respondents 4 to 7 before the District Labour Officer. The appeal was allowed. It is challenging this Order, the petitioner has filed this writ petition. 2. The petitioner raised 2 contentions. One is that, identity of respondents 4 to 7 is questionable. Secondly, it is contended that the unattached worker in the area got the primacy for engagement as it is a scheme covered area. W.P.(C).No.37884 of 2016 : 2 : 3. On the other hand, the learned counsel for the party respondents points out to the identity card issued to each of the respondents 4 to 7. It is submitted that the identity card has been issued after verifying the identity of each person. It is further submitted that unattached worker in the scheme area has no primacy for employment and every permanent worker working under establishment has the right to get registered in terms of Rule 26A of the Kerala Headload Workers Rules. 4. In regard to the first controversy, this Court is of the view that the registering authority having satisfied with the identity of workers, it cannot be questioned by a third party. In regard to the second question, in fact, the issue is covered against the petitioner in the light of a Division Bench judgment of this Court in **Gangadharan, C.P. and another Vs. Abdul Nasir and others [I.L.R.2016 (4) Kerala 702]** . In paragraph 9 of the above, it was held as follows: “ _9. Going by the scheme of the statute and also by virtue of the binding precedents, it is always open for the Employer to make appropriate arrangements by engaging workers of his own to do the loading and unloading operations as well, thus getting it done by the_ W.P.(C).No.37884 of 2016 : 3 : _attached workers, but it requires registration of such attached workers in terms of Rule 26A of the Rules. It is quite open for anybody to have his own freedom to do the work, trade or business which is a fundamental right under Article 19(1) (g) of the Constitution of India. If such person/Employer seeks to engage sufficient number of workers to meet the requirements of his establishment on a permanent basis, it cannot be objected to from any corner, as it is the vested right of the Employer to engage sufficient number of employees of his choice. But, by virtue of the provisions for regulating loading and unloading operations in an area, the State Government has passed an enactment and has formulated relevant rules in exercise of the rule making power. Since the area in question has been notified as a scheme-covered area, such engagement of loading/unloading workers by the Employer has necessarily to be in tune with the regulations and it is accordingly, that registration of such workers is contemplated under Rule 26A of the Rules. It was in conformity with the said rules, that applications were made by the permanent workers/attached workers of the first writ petitioner vide Exts.P-4, P-5 and P-6 before the registering authority, which however came to be rejected by the Asst.Labour Officer for the reason that it would adversely affect the rights of the existing registered workers in the area and further that the first writ petitioner/Employer had not_ W.P.(C).No.37884 of 2016 : 4 : _maintained proper records, in terms of the statute. We find that the law declared by the different single Benches of this Court as per the rulings reported in 2010 (4) K.L.T.783 (_ _**Rajeev's case** ), 2015 (1) K.L.T.750 (_ _**Majeed' case** ), 2015 (5) K.H.C.275 (_ _**Alfred Thomas** v._ _**State of Kerala and others** ) and 2015 (1) K.L.T.314 (_ _**Muhammed Shafeek's case** ) are correctly decided in relation to the rights and liberties of the parties concerned, to the extent the issue involved in the present case is concerned. The sum and substance is that, it is very much obligatory for the registering authority to give registration to the attached workers, in terms of Rule 26A of the Rules, so as to enable the Employer and the attached workers to carry out the retirements of the establishment to the desired extent, which cannot be watered down or thwarted in any manner.”_ 5. In the light of the above judgment, this Court is of the view that the writ petition is liable to be dismissed. Accordingly, it is dismissed. The petitioner also seeks for a direction to the Deputy Labour Commissioner to consider Ext.P7. However, the learned counsel for the party respondents points out that this has been considered and already been rejected. Even if that application is pending, in the light of Division Bench judgment of this Court, there is no W.P.(C).No.37884 of 2016 : 5 : point in directing the Deputy Labour Commissioner to consider Ext.P7. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** Bb/20/12/2016 _[True copy] P.A to Judge_