All Kerala Distributors Association, Kodungallur Unit v. Sub Inspector of Police, Kodungallur, Ernakulam District and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY, THE 20TH DAY OF JUNE 2017/30TH JYAISHTA, 1939 ## WP(C).No. 38742 of 2016 (P) ---------------------------- ## PETITIONER(S): ----------------- ALL KERALA DISTRIBUTORS ASSOCIATION, KODUNGALLUR UNIT, REPRESENTED BY ITS PRESIDENT, T.K.SIDHARTHAN. ## BY ADVS.SRI.A.N.SANTHOSH SRI.G.BALAMURALEEDHARAN (PARAVUR) ## RESPONDENT(S)/RESPONDENTS:-: ---------------------------- ## 1. SUB INSPECTOR OF POLICE, KODUNGALLUR, ERNAKULAM DISTRICT - 680 664. ## 2. CHAIRMAN, KERALA HEAD LOAD WORKERS, WELFARE FUND OFFICE, KOTTAPPURAM SUB OFFICE, KOTTAPPURAM, KODUNGALLUR - 680 664. ## 3. CHAIRMAN, KERALA HEAD LOAD WORKERS, WELFARE FUND OFFICE, THRISSUR - 680 001. ## 4. THE ASSISTANT LABOUR OFFICER, KODUNAGLLUR - 680 664. 5. HEAD LOAD AND GENERAL WORKERS UNION (CITU), KOTTAPPURAM UNIT, KOTTAPPURAM, KODUNGALLUR - 680 664, REPRESENTED BY ITS SECRETARY. WP(C).No. 38742 of 2016 (P) ---------------------------- : 2 : 6. BHARATH MAZDOOR SANGH (BMS), KOTTAPPURAM UNIT, KOTTAPPURAM, KODUNGALLUR - 680 664, REPRESENTED BY ITS SECRETARY. ## 7. AITUC, KOTTAPPURAM UNIT, KOTTAPPURAM, KODUNGALLUR - 680 664, REPRESENTED BY ITS SECRETARY. 8. DISTRICT LABOUR OFFICER, THRISSUR - 680 001. R2&3 BY ADV. SRI.KOSHY GEORGE, SC, KHLWWB R5-R7 BY ADV. SRI.V.P.PRASAD R BY SRI P.P. THAJUDEEN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 38742 of 2016 (P) ---------------------------- : 3 : ## **APPENDIX** PETITIONER(S)' EXHIBITS: ------------------------------ EXHIBIT P1. A TRUE PHOTO COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 11.11.2016. EXHIBIT P2. TRUE PHOTO COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 16.11.2016. EXHIBIT P3. TRUE PHOTO COPY OF THE COMMUNICATION DATED 23.11.2016 ISSUED BY THE THE 4TH RESPONDENT. EXHIBIT P4. TRUE PHOTO COPY OF THE PETITION DATED 11.11.2016 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P5. TRUE PHOTO COPY OF THE COMMUNICATION DATED 03.02.2013 ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD, KOZHIKODE DISTRICT COMMITTEE. EXHIBIT P6. TRUE PHOTO COPY OF THE INTERIM ORDER DATED 04.11.2015 IN W.P.(C) NO.31261/2015 OF THIS HON'BLE COURT. EXHIBIT P7: TRUE PHOTOCOPY OF THE REGISTRATION CERTIFICATE ISSUED IN FAVOUR OF THE PETITIONER SOCIETY. RESPONDENT(S)' EXHIBITS: -------------------------------- EXT.R5(a) : TRUE COPY OF THE MEMORANDUM OF SETTLEMENT FROM 01.05.2015 TO 30.04.2017. EXT.R5(b) : TRUE COPY OF THE WORK CARD DATED 15.12.2016. EXT.R5(c) : TRUE COPY OF THE WORK CARD DATED 16.12.2016. EXT.R5(d) : TRUE COPY OF THE WORK CARD DATED 17.12.2016. True Copy/ P.A to Judge. rv **ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. ------------------------------------------W.P.(C) No. 38742 of 2016 (P ) -----------------------------------------Dated this the 20[th] day of June, 2017.** ## **JUDGMENT** ## Antony Dominic,J. The petitioner is the Kodungallur unit of an association of distributors of consumer goods in Kottappuram Market of Kodungallur Taluk. In the affidavit dated 30.01.2017, the petitioner has furnished the details of the members of the association. 2. According to the petitioner, their members distribute the consumer goods in delivery vans and other vehicles owned by them and that the delivery boys who accompany the goods deliver these consumer goods to the retail sellers. Though this was a practice which was prevailing, of late the work of loading and unloading the goods into the delivery vans and from the delivery vans was obstructed by the respondent unions asserting that it is their right to do such loading and unloading work. As a result of the obstruction offered by the unions, the members of the petitioner association were unable to continue their business activities. They, therefore, moved the police for police help and complaining that the police protection was not forthcoming, the writ petition was filed seeking orders of police protection. W.P.(C) No. 38742/2016 -2- 3. In the affidavit filed, the Kerala Headload Workers' Welfare Fund Board and the Unions assert that Kottappuram market is an area covered by the scheme framed under the Kerala Headload Workers Act and therefore the work is liable to be got done by engaging the workers from the pool concerned. In fact, the respondent unions have also produced the memorandum of settlement entered into between the Unions and the Merchants Association regulating the remuneration for the work of loading and unloading in Kottappuram area. 4. Essentially therefore the petitioner disputes the claim of the respondents to do the work of loading and unloading, and reiterates the entitlement of its members to get the loading and unloading work done by their own workers. The stand adopted by the respondents is that the work is liable to be got done by engaging the Headload workers deputed from the pool maintained under the scheme framed pursuant to the provisions of the Kerala Headload Workers Act. Having considered the submissions made, we find that the Kerala Headload Workers Act and the scheme framed thereunder would be of application only to the establishments enumerated under the schedule to the Act and the question is whether the members of the petitioner or their buyers would qualify to be an establishment as defined under the Act. Insofar as this question is concerned, we do not think, it needs to be debated at length W.P.(C) No. 38742/2016 -3- for the reason that a Larger Bench of this Court has already considered an identical issue in the decision in _**Therasa Jose v. Sub Inspector of Police**_[1] . In that case, after examining the provisions of the Kerala Headload Workers Act, the Rules and the Scheme, it was held by the larger Bench that the petitioner's establishment where marble and such other materials were being sold does not qualify to be an establishment within the meaning of the Act for the reason that the loading and unloading work involved is not the predominant activity, but was only an incidental activity. According to us, the same principle should apply to the case of the members of the petitioner and their buyers, who are retailers. If that be so, the workers of the pool constituted under the scheme framed under the Kerala Headload Workers Act cannot have any claim for the incidental work of loading and unloading in the establishment of the members of the petitioner or at the delivery points. In other words, the members of the petitioner are entitled to deliver the goods distributed by them through their own workers. 5. Insofar as Ext.R5(a), the settlement entered into by the Unions and the Merchants Association relied on by the respondents is concerned, neither the Headload Workers Act nor the Rules or the scheme framed thereunder recognise the entitlement of trade unions to enter into such a settlement governing the workers. On the other hand, 1 2015 (1) KLT 485 W.P.(C) No. 38742/2016 -4- in an area where the scheme is applied, a Committee is constituted under Section 18 of the Act and it being the employer, has to fix the terms and conditions of the employment of the Headload Workers, who are registered in the Pool and such workers have to work in terms of such conditions of service. Therefore, Ext.R5(a) settlement has no sanctity in law and cannot be pressed into service to buttress the claim of the unions. 6. Evidently therefore, the obstruction offered by the unions is illegal and therefore, it is ordered that in the event any obstruction by the unions is reported by the members of the petitioner, necessary protection shall be afforded by the first respondent to enable the members of the petitioner to carry on their business activities. This writ petition is disposed of as above. **ANTONY DOMINIC, JUDGE.** **DAMA SESHADRI NAIDU, JUDGE.** Rv W.P.(C) No. 38742/2016 -5-