A. Jayakrishnan v. Deputy Superintendent of Police, Thodupuzha and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MRS. JUSTICE SHIRCY V. THURSDAY, THE 3RD DAY OF AUGUST 2017/12TH SRAVANA, 1939 WP(C).No. 24583 of 2017 (W) ----------------------------------- PETITIONER: - -------------- A.JAYAKRISHNAN AGED 52 YEARS, S/O AYYAPPAN NAIR, NANDANAM HOUSE, THODUPUZHA-685585, PROPRIETOR, NEERALI FISHERIES, THODUPUZHA. BY ADVS.SRI.K.K.CHANDRAN PILLAI (SR.) SMT.S.AMBILY SMT.ELSA DENNY PINDIS SRI.SAJI THOMAS SMT.NAMITHA NAMBIAR RESPONDENTS: ----------------- 1. THE DEPUTY SUPERINTENDENT OF POLICE, OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, THODUPUZHA-685532. 2. THE CIRCLE INSPECTOR OF POLICE, THODUPUZHA POLICE STATION, THODUPUZHA-685532. 3. THE SUB INSPECTOR OF POLICE, THODUPUZHA POLICE STATION, THODUPUZHA-685532. 4. STATE OF KERALA, - REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, - THIRUVANANTHAPURAM PIN-695001. 5. INDIAN NATIONAL TRADE UNION CONGRESS (INTUC) THODUPUZHA, REPRESENTED BY ITS PRESIDENT, INTUC OFFICE, THODUPUZHA-686532. 6. BHARATHEEYA MAZDOOR SANGH (BMS) THODUPUZHA, REPRESENTED BY ITS SECRETARY, BMS OFFICE, THODUPUZHA 686532. WP(C).No. 24583 of 2017 (W) -2- 7. SWATHANTHRA THOZHILALI UNION (STU) THODUPUZHA, REPRESENTED BY ITS SECRETARY, THODUPUZHA-686532. 8. CENTRE OF INDIAN TRADE UNION (CITU) REPRESENTED BY ITS SECRETARY, C.I.T.U OFFICE, THODUPUZHA-686532. 9. ALL INDIA TRADE UNION CONGRESS (AITUC) THODUPUZHA, REPRESENTED BY ITS SECRETARY, AITUC OFFICE, THODUPUZHA 685532. 10. SHAJI, KUNJAMPARAMBIL HOUSE, S/O YASAMEER MOHAMMED, VENGALLOOR P.O., THODUPUZHA 686585. 11. ABDUL RASHEED, THEKKEDATH HOUSE, S/O THAMPI KANNU, VENGALLOOR, THODUPUZHA 685585. 12. SIDDIQUE, VADAKKEPARAMBIL, S/O ISMAIL, VENGALLOOR, THODUPUZHA-685585. 13. SHAMSUDHEEN, KUNJAMPARAMBIL HOUSE, S/O KASIM VENGALOOR, THODUPUZHA-685585. 14. NAJEEB, AMMANDIPEEDIKA, S/O NAINAR VENGALLOOR THODUPUZHA-685585. 15. NOOR ZAMEER, KAPRATTIL HOUSE, S/O HANEEFA, VENGALLOOR, THODUPUZHA-685585. 16. THE ASSISTANT LABOUR OFFICER, THODUPUZHA-685532. * Addl. 17. KERALA HEADLOAD WORKERS WELFARE FUND BOARD, IDUKKI DISTRICT COMMITTEE,REPRESENTED BY ITS CHAIRMANPIN 685 602. WP(C).No. 24583 of 2017 (W) -3- *[ADDL. R17 IS IMPLEADED AS PER ORDER OF THIS COURT DATED 01.08.17 IN IA 12180/17] ADDL. R17 BY ADV. SRI.KOSHY GEORGE, SC, KHLWWB R5 & 8 -R 15 BY ADV. SRI.LATHEESH SEBASTIAN BY SR. GOVERNMENT PLEADER SRI.P.P.THAJUDEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WP(C).No. 24583 of 2017 (W) ----------------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ----------------------------- EXHIBIT P1 PHOTOGRAPHS (7 NOS) - EXHIBIT P2 COPY OF THE INSPECTION ORDER ISSUED BY THE ASST. LABOUR OFFICER DATED 22.2.2017. - EXHIBIT P3 COPY OF REGISTRATION CERTIFICATE ISSUED BY THE ASST. LABOUR OFFICER DATED 22.2.2017. - EXHIBIT P4 COPY OF THE RECEIPT ISSUED BY THE ASST.LABOUR OFFICER DATED 22.2.2017. - EXHIBIT P5 COPY OF THE MUSTER ROLE PREPARED FOR FEBRUARY 2017. - EXHIBIT P6 COPY OF THE MUSTER ROLE FOR THE MONTH OF MAY 2017. - EXHIBIT P7 COPY OF THE REGISTER OF WAGES FOR THE MONTH OF MAY 2017, SHOWING THE PRESENT SALARY/WAGES GIVEN TO THE WORKERS/STAFF. - EXHIBIT P7(A) COPY OF THE RELEVANT PAGE OF THE REGISTER OF EMPLOYMENT AND WAGES COMMENCING FROM 1.5.17. - EXHIBIT P8 COPY OF THE WRITTEN COMPLAINT FILED DATED 16.7.17 GIVEN TO RESPONDENTS 2 AND 3. EXHIBIT P9 COPY OF THE PROCEEDINGS DATED 20.7.17 ISSUED BY THE ASST.LABOUR OFFICER. - EXHIBIT P10 COPY OF THE INTERIM ORDER IN I.A. 19/17 IN O.S 5/7 OF THE MUNSIFF'S COURT, THODUPUZHA DATED 30.6.17. RESPONDENT(S)' EXHIBITS -------------------------------- EXT.R5(a):- TRUE COPY OF THE PLAINT IN OS 5/17 OF MUNSIFF'S COURT, THODUPUZHA. EXT.R5(b):- TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE CONTESTING DEFENDANTS IN EXT.R5(a). EXT.R5(c):- TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 5TH RESPONDENT IN WPC 21996/17 EXT.R5(d):- TRUE COPY OF THE WRIT PETITION IN WPC 21996/17 (WITHOUT EXTS.) EXT.R5(e):- TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC 21996/17 DT 07.7.17. ---------- ## **ANTONY DOMINIC & SHIRCY V., JJ.** -----------------------------------------------W. P. (C) No.24583 of 2017 -----------------------------------------------Dated this the 3[rd ] day of August, 2017 ## **JUDGMENT** ## **Antony Dominic, J.** 1. aThis writ petition is filed seeking orders of police protection to the petitioner and the workers and staff of his establishment “Neerali Fisheries”, Thodupuzha. 2. M/s Neerali Fisheries, the establishment of which the petitioner is the proprietor, is running a wholesale fish market at Thodupuzha. Although the area in question is covered by a scheme framed under the Kerala Head load Workers Act and Rules, the petitioner was employing his own workmen for the incidental loading and unloading activities. Recently, apparently finding that these workers are not registered under Rule 26A, a claim was raised by the party respondents, the workers registered under the pool, that they alone are entitled to do the loading and unloading -2- W. P. (C) No.24583 of 2017 work in the establishment. 3. Thereupon, permanent workers of the petitioner employed for the loading and unloading work, made applications for registration under Rule 26A of the Kerala Head load Workers Rules. Thereafter, they filed W.P.(C) No.21996 of 2017 before this Court seeking expeditious orders on the applications made by them. This Court disposed of the writ petition by judgment dated 07.07.2017 directing consideration of the applications made by the workers. In the meanwhile, petitioner had closed down the establishment with effect from 04.07.2017. 4. Subsequently, on 20.07.2017, the Assistant Labour Officer, the registering authority, passed order rejecting the applications made for registration under Rule 26A, a copy of which is produced as Ext.P9. A reading of this order shows that the only reason stated by the Assistant Labour Officer is that, on the petitioner's own showing, the establishment in W. P. (C) No.24583 of 2017 -3- question is lying closed with effect from 04.07.2017 and that therefore, the workers are not presently engaged in loading and unloading work. It is thereupon, alleging that Ext.P9 order is vitiated for extraneous considerations and that the petitioner is entitled to run his establishment, if necessary, with police protection, the writ petition is filed. 5. We heard the learned Senior Counsel appearing for the petitioner, the learned Government Pleader appearing for the official respondents, the learned counsel appearing for the Trade Unions and the workers, and the learned Standing Counsel appearing for the additional 17[th] respondent. 6. According to the learned counsel for the respondents, the area in question is a scheme covered area, where, in the absence of workers registered under Rule 26A, the employers are required to employ head load workers from the pool. It is stated that, not only that the petitioner W. P. (C) No.24583 of 2017 -4- does not have any registered head load workers, but also by Ext.P9, the applications made by the workers for registration, have been rejected. The learned counsel further invited our attention to Ext.P10, the order passed by the Munsiff's Court, Thodupuzha, in O.S. No.5 of 2017, where the Munsiff's Court has upheld the entitlement of the workers to work in the establishment of the petitioner, so long as the workers are not registered under Rule 26A of the Head load Workers Rules, the area being a scheme covered one. 7. We have considered the submissions made. Law is settled that in an area to which the scheme framed under the Kerala Head load Workers Act is extended, unless the permanent workers of an employer are registered under Rule 26A of the Rules, the employer is obliged to engage head load workers from the pool. It was realising this statutory obligation that the permanent workers of the -5- W. P. (C) No.24583 of 2017 petitioner made applications for registration under Rule 26A, which have now been rejected by Ext.P9 order. A reading of Ext.P9 order shows that the only reason stated by the 16[th] respondent to pass such an order is that, the petitioner himself has deposed that the establishment is lying closed with effect from 04.07.2017 and that therefore, the workers are not presently engaged in head load work. We are, absolutely, unable to countenance this reasoning of the 16[th] respondent. According to us, law is trite that it is not necessary that on the date of application or its consideration, an establishment should be functioning or that the workers should be actually engaged in head load work to maintain an application for registration under Rule 26A. On the other hand, the provisions of the Head load Workers Act itself permits an application for registration under Rule 26A, even prior to the opening of an establishment. The law, in this regard, already stands -6- W. P. (C) No.24583 of 2017 clarified by the judgment of this Court in **Rajeev v. District Labour Officer [2010 (4) KLT 783].** Therefore, it is either in ignorance of this legal position or ignoring the same, that the 16[th] respondent has chosen to pass Ext.P9 order. This order is patently untenable and is a perverse one. 8. We may, in this context, refer to the case of the petitioner that his establishment, functioning with all necessary licenses, has been transacting huge volume of business every day. That establishment had to be closed down on account of the claims made by the outside workers for work. It was to get over that situation that the workers of the petitioner's made application under Rule 26A and those applications have been rejected by the 16[th] respondent with a perverse reasoning. Resultant position is, the continued closure of the establishment, huge monetary loss to the petitioner and loss of employment to his workers. According to us, such a situation should not have been -7- W. P. (C) No.24583 of 2017 created by a statutory authority. We are satisfied that this situation cannot be allowed to continue. 9. In these circumstances, the writ petition is disposed of with the following directions: - (1)Ext.P9 order is set aside. 16[th] respondent will pass fresh orders on the applications made by the workers for registration under Rule 26A. The petitioner and his workers will appear before the 16[th] respondent, for any further enquiry that is needed, on 08.08.2017 at 11.00 a.m. Respondents herein may also appear, if they have any contentions to urge on the applications made for registration under Rule 26A of the Rules. - (2)On 08.08.2017, the matter shall be heard and orders on the applications shall be passed, at any rate, on or before 14.08.2017. W. P. (C) No.24583 of 2017 -8- 10. In the meanwhile, if the petitioner resumes business, he will be free to engage his workers who have applied for registration under Rule 26A and if their work is obstructed, the police shall afford adequate protection for removing any such obstruction. 11. The continuance of the activities in the market after 14.08.2017 will depend upon the nature of the order that is to be passed by the 16[th] respondent. Sd/- **JUDGE** **ANTONY DOMINIC** Sd/- **SHIRCY V. JUDGE** kns/- //TRUE COPY// P.S. TO JUDGE W. P. (C) No.24583 of 2017 -9-