Alleppey Parcel Service & Others v. Showkathali & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 WA.No. 407 of 2008 -------------------------AGAINST THE JUDGEMENT IN WPC.1172/2008 DATED 31/01/2008 .................... ## APPELLANTS/RESPONDENTS 3 TO 6: ----------------------------------------------------- 1. ALLEPPEY PARCEL SERVICE, REPRESENTED BY ITS PROPRIETOR, T.T.KURUVILLA, 25/556(3), MANJAKKULAM ROAD, PALAKKAD. 2. A.BABU, S/O. AYYASWAMY, RESIDING AT 30/782, KARUKONI PALAYAM, VADAKKANTHARA, PALAKKAD. 3. G.KRISHNAKUMAR, S/O. GOPALAN, RESIDING AT USHA NIVAS, NELLISSERITHODI, VADAKKANTHARA, PALAKKAD. 4. S.SUMESH, S/O. SUKUMARAN, RESIDING AT 37/8, DEVI NAGAR, VADAKKANTHARA, PALAKKAD. BY ADV. SRI.V.SANTHARAM SRI.ANTO THOMAS SRI.LAKSHMEESH.S.KAMATH ## RESPONDENTS/PETITIONER & RESPONDENTS 1, 2 AND 7: ------------------------------------------------------------------------------------ 1. SHOWKATHALI, S/O. KOYAKUTTY, RESIDING AT MANNANCHIRA ROAD, PALAKKAD. 2. THE DISTRICT LABOUR OFFICER, - PALAKKAD. 3. THE ASSISTANT LABOUR OFFICER, - CIRCLE-II, THOZHIL BHAVAN, PALAKKAD. - 2 - ## 4. THE KERALA HEADLOAD WORKERS WELFARE BOARD, REPRESENTED BY ITS CHAIRMAN, LOCAL COMMITTEE, PALAKKAD. R1 BY ADV. SRI.V.CHITAMBARESH (SR.), SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU R2 & R3 BY SR.GOVERNMENT PLEADER SMT.K.MEERA R4 BY ADV. SRI.KOSHY GEORGE THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06/03/2008, ALONG WITH WPC NO. 5966 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **H.L.DATTU, C.J. & K.M.JOSEPH, J.** ------------------------------------------ **W.A.No.407 of 2008 &** ## **W.P.(C) No.5966 of 2008** -----------------------------------------Dated, this the 6[th] day of March, 2008 ## **JUDGMENT** ## **K.M.Joseph, .J.** The first appellant in the writ appeal is running a parcel service. Appellants 2 to 4 are his workers. Appellants 2 to 4 filed an application for registration under Rule 26A(2) of the Kerala Headload Workers Rules, 1981 ('the Rules' for short). The said application came to be rejected by Ext.P4. The first appellant had also filed a writ petition seeking police protection. In the writ petition it is pointed out by the first appellant that Ext.P4 was illegal. According to the first appellant, appellants 2 to 4 have got cards under the Headload Workers Act from the Alappuzha office which would suffice and it was not necessary for them to obtain cards from the Labour Officer at Palakkad to which place they were transferred. A Division Bench of this Court after considering the writ petition for police protection passed Annexure A3 order wherein it took the following view: “But prima facie, we are not inclined to accept the contention that the workers from Alappuzha need not get registration from Palakkad Assistant Labour Officer. A worker having registration from the Assistant Labour Officer is entitled tom get registration from another Assistant Labour Officer if his place of work is shifted to the jurisdiction of the latter. A person without any registration is entitled to get fresh registration if he is employed as a head load worker. So, registration cannot be rejected to a person who happened to be W.A.No.407/2008 & WP (C) No.5966/2008 2 registered in some other jurisdiction. So, prima facie we feel that Ext.P28 is not validly passed. The petitioner or the workmen may appeal against Ext.P28 within one month from today. If such an appeal is filed, the interim order granted for police protection will continue till the appeal is disposed of. Post the writ petition for hearing.” 2. Appellants 2 to 4 filed appeal before the District Labour Officer culminating in Ext.P6 order. Ext.P6 order came to be impugned by the writ petitioner alleging that the writ petitioner was affected by the order and that he was not heard and what is more even the 4[th] respondent, namely the Kerala Headload Workers Welfare Board was not heard. The learned Single Judge found favour with the contentions raised by the writ petitioner that neither the writ petitioner nor the 4[th] respondent was heard before Ext.P6 order was passed. The learned Single Judge reasons that before issuing Ext.P4 order the writ petitioner was heard and it was in such circumstances the learned Judge was pleased to quash Ext.P6 order and directed the appellate authority to rehear the matter with opportunity to the writ petitioner and the 4[th] respondent Board. It is feeling aggrieved by the said order that the writ appeal has been filed. 3. We heard Sri.V.Santharam, learned counsel appearing for the appellants, Sri.V.Chitambaresh, learned senior counsel appearing for the first respondent as also Sri.Koshy George, learned counsel appearing on behalf of the 4[th] respondent Board. 4. It is contended on behalf of the appellants that it is clear that in the W.A.No.407/2008 & WP (C) No.5966/2008 3 light of Annexure A3 order the impugned order was beyond reproach and there is no basis for the learned Single Judge to interfere with the matter. More importantly, he contended that the writ petition was filed without any locus standi. He would also contend that the writ petitioner (first respondent herein) is only a pool worker. Under Rule 26A(2) of the Rules, after amendment, he would say that there is no necessity to issue notice to the writ petitioner. He would further contend that the finding of the learned Single Judge that the writ petitioner was heard before Ext.P4 order was passed is not correct. He would further point out that he did not have any opportunity to file a counter affidavit. When he filed a petition seeking to vacate the interim order, the writ petition itself was disposed of, he complained. 5. Rule 26A(2) of the Rules reads as follows: ## “ **26A. Registration of Headload Workers:-** xx xx (2) On receipt of such application the Registering Authority shall issue notice in Form X to the employers or contractors from whom the Headload Worker claims work and in area where the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 is in operation, to the Chairman, Kerala Headload Workers Welfare Board Local Committee in such area with copy of the application inviting objections, if any, on such application.” 6. Learned counsel would contend that if at all anybody was aggrieved, it was the 4[th] respondent Board and the writ petition at the instance of the first respondent who has no interest in the matter was not maintainable. In support W.A.No.407/2008 & WP (C) No.5966/2008 4 of his contention he relies on a Division Bench decision of this Court reported in _**Jnana Prakasam**_ v. _**Natarajan**_ (2002 (1) KLT 39) wherein he sought our attention to paragraph 9 which reads as follows: “The decision in this Appeal will rest upon the interpretation given to the words “any person aggrieved” in R.26C (1). Going by the literal meaning, any person who considers himself aggrieved will be able to file an appeal. With regard to the question whether the existing workmen can be said to be persons aggrieved by the grant of registration to fresh workmen in an area, the learned Single Judge was of the view that they cannot be said to be persons aggrieved. The words “persons aggrieved” have been read down only to include persons who have a right of hearing at the time of registration of the workmen. Such persons are the applicants and the employers. In relation to registration of attached workmen who are employed in a particular shop, third parties cannot have any right of hearing or any right of appeal. In the case of registration of workmen in a particular area, at the first instance, “aggrieved persons” will include only the applicants and the contractors. But when it comes to the case of application by new workmen in an area where there are already a set of workmen, the interpretation given by the learned single Judge will not be correct. If in an area fresh workmen also enter, that will result in sharing the cake by more mouths resulting in depletion of the share of existing workmen. This will affect the livelihood of the existing workmen which is considered as a concomitant of the right of life guaranteed under Art. 21 of the Constitution of India.” It is also pointed out that in view of the observation contained in Annexure A3 order passed by the Division Bench it may not be correct to contend that it was W.A.No.407/2008 & WP (C) No.5966/2008 5 necessary to issue notice to the 4[th] respondent Board as it was an empty formality. It was also contended that the 4[th] respondent is bound by the observations contained in Annexure A3 order as it was a party to the same. 7. Sri.V.Chitambaresh, learned senior counsel appearing on behalf of the writ petitioner, would contend that he was indeed a necessary party. It is a clear case where apart from the fact that he was not heard, even the 4[th] respondent who is the statutory authority under sub rule (2) of Rule 26A of the Rules was not issued with any notice or heard before Ext.P6 order was passed. He would further contend that even if the writ petitioner need not be heard, in so far as Ext.P6 order came to be passed without hearing the statutory authority which should have been heard, if the writ appeal is allowed for the sole reason that the writ petitioner has no locus standi to file the petition, it would amount to reviving the order passed by the statutory authority which is palpably illegal. 8. Sri.Koshy George, learned counsel appearing on behalf of the 4[th] respondent Board would contend that it is not correct to say that any opportunity of hearing afforded to the 4[th] respondent in pursuance of the mandate of Rule 26A(2) would be a futile exercise. He drove our attention to Section 26 to contend that in the facts and circumstances of the case appellants 2 to 4 were not entitled to registration. 9. We notice yet another development. After the writ appeal was preferred and an interim order was passed, the 4[th] respondent Board has itself preferred a writ petition as W.P.(C) No.5966 of 2008 challenging Ext.P6 order. The learned Single Judge has taken up the matter and stayed Ext.P6 order W.A.No.407/2008 & WP (C) No.5966/2008 6 and referred the matter to a Division Bench and accordingly the writ petition is also posted before us and it is being disposed of by this common judgment. 10. We see considerable force in the contention of the learned counsel for the appellants Sri.V.Santharam that the writ petitioner in W.P.(C) No.1172 of 2008 was not a person to whom any notice is to be issued under Rule 26A(2) of the Rules. It is clear beyond doubt that notice is contemplated only to the employer or the contractor. No notice is contemplated to a worker like the writ petitioner. He relies on the observations made by the Division Bench of this Court which we have already referred to in this regard. This would mean that there is not much merit in the complaint of the writ petitioner before the learned Single Judge that Ext.P6 order was vulnerable for the reason that he was not afforded an opportunity of hearing before Ext.P6 order was passed. But that would not be the end of the matter as it is an admitted case that not only the writ petitioner but also the 4[th] respondent was not heard. 11. Having regard to the nature of Annexure A3 order we would think that the appellants may not be justified in contending that the 4[th] respondent Board need not be heard in the matter. It is to be noted that issuance of notice to the 4[th] respondent Board is mandated by the statute. In such circumstances, we would think that the impugned order was at any rate vitiated for the reason that it is not passed after hearing the 4[th] respondent Board. In such circumstances, we would partially allow the writ appeal and dispose of the same as follows: i) Writ appeal is allowed partially. We direct the second respondent to hear the appeal filed by appellants 2 to 4 after affording an opportunity of 7 ## W.A.No.407/2008 & WP (C) No.5966/2008 hearing to appellants 2 to 4 as also the 4[th] respondent Board. In other words, the direction to hear the writ petitioner shall stand deleted. In view of the facts and circumstances of the case, we further direct that the second respondent will take up the appeal filed by appellants 2 to 4 on 24.3.2008. Appellants 2 to 4 or their representatives and the 4[th] respondent or its representative shall be present at 11 A.M. on 24.3.2008 before the second respondent and the second respondent shall proceed to hear them and take a decision in the matter in accordance with law within a period of ten days from 24.3.2008. It is open to the parties to produce such material as they are advised to produce. In the light of this decision of ours, we feel that no further orders are necessary in W.P.(C) No.5966 of 2008 and it shall stand dismissed. ( **H.L.DATTU) CHIEF JUSTICE** **(K.M.JOSEPH) JUDGE** vns