Amal Gopi and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.M.BADAR WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943** ## **WP(C) NO. 5765 OF 2021** ## **PETITIONERS:** |**1**|**AMAL GOPI**| |---|---| ||**AGED 30 YEARS**| ||**S/O.GOPI, VARAMBANANIKKAL, ODAMTHODU,**| ||**MANATHANA P.O., KANNUR DISTRICT.**| |**2**|**SREEJITH N.S.**| ||**AGED 33 YEARS**| ||**S/O.SREEDHARAN, NARAMGOLI, PALAYATH VAYAL,**| ||**PEUVA P.O., KANNUR DITRICT.**| |**3**|**VIJESH P.M.**| ||**AGED 31 YEARS**| ||**S/O.GEORGE, PANTHAPLAKKAL HOUSE,**| ||**PERUMBUNNA P.O., KANNUR DISTRICT.**| ## **BY ADV PEEYUS A.KOTTAM** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**LABOUR DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**DISTIRCT LABOUR OFFICER**| ||**LABOUR OFFICE, SP OFFICE RD, THAVAKKARA,**| ||**KANNUR, KERALA - 670 002.**| |**3**|**ASSISTANT LABOUR OFFICER**| ||**LABOUR OFFICE, SP OFFICE RD., THAVAKKARA,**| ||**KANNUR, KERALA - 670 002.**| ||**[*THE ADDRESS OF THE 3RD RESPONDENT IS CORRECTED AND SUBSTITUTED**| ||**AS “ASSISTANT LABOUR OFFICER, LABOUR OFFICE, IRITTY ROAD,**| ||**NERAMBOKKU, IRITTY, KANNUR-670 703” AS PER ORDER DATED 02.11.2021**| ||**IN I.A.NO.1/2021 IN W.P.(C) NO.5765/2021.*]**| |**4**|**KERALA HEAD LOAD WORKERS WELFARE BOARD**| ||**KANNUR DISTRICT OFFICE, FOOD GRAINS BHAVAN BLDG.,**| ||**2ND FLOOR, RAJEEV GANDHI ROAD, J.S.POUL JN.,**| ||**KANNUR - 670 001, REPRESENTED BY ITS CHAIRMAN.**| ||**R1-R3 BY SMT. SABEENA P. ISMAIL, GOVERNMENT PLEADER**| ## **R4 BY ADV SHRI.THOMAS ABRAHAM, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT** **ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 5765 OF 2021** **2** ## **JUDGMENT** ## **Dated this the 4[th] day of August 2021** Heard all parties. The petitioners, who are working with M/s. New Steel Win Company, are desirous of having registration as head load workers as per provisions of Rule 26 A of the Kerala Head Load Workers Rules, 1987. They preferred an application for registration which came to be rejected by the 3[rd] respondent as per communication at Ext.P4(a). The reason for rejection is to the effect that as the 4[th] respondent, Board has objected to the application for registration, the same is rejected. The petitioners carried that order in appeal under provisions of Rule 26C of the Kerala Head Load Workers Rules, 1987. The appeal came to be rejected by the 2[nd] respondent, District Labour Officer and the appellate authority with the following reasons; “As per Ref. 1 the Assistant Labour Officer submitted that, M/s.New Steel Win Co., Myladumpara, is a **WP(C) NO. 5765 OF 2021** ## **3** company that comes under the jurisdiction of Kerala Headload Workers Welfare Board and the Chairman of the Board commented that the afore mentioned three applicants are not eligible for 26A card. As there are other laborers with 26A card in the area, issuing 26A card for three laborers in a single company is not desirable. It is understood that there is a chance of other head load workers in the area may be unemployed due to issuance of the card. It is also seen that the employer is the one who submitted the appeal. Due to the aforesaid reasons, the request of Sri. Amal Gopi, Sri. Vijesh P.M and Sri. Sreejith N.S. for issuance of 26A card is being rejected using the power of the appellate authority conferred as per Section 26 c of Kerala Headload Workers Rules and thereby dismissed this appeal. Hence the appeal is concluded.” 2. The learned counsel for the petitioners argued that the issue involved in the petition is covered by judgment of the Hon'ble Division Bench of this Court in the matter of _**Gangadharan C.P. and**_ ## _**Another v. Abdul Nasir and Others reported in 2016**_ _**(5) KHC 238**_ and therefore the petition deserves to be allowed. The objection by the Board or the fact ## **WP(C) NO. 5765 OF 2021** ## **4** that other head load workers are working in the scheme covered area cannot be a reason for rejection of the application for registration. 3. The learned Government Pleader as well as the learned Standing Counsel appearing for the 4[th] respondent Board argued that the petitioners are not head load workers, but they were working as crane operators. It is further argued that the area is a scheme covered area were other head load workers are already working. Therefore, grant of registration to the petitioners would amount to depriving the head load workers in the scheme covered area of their livelihood. 4. I have considered the submissions so advanced and perused the materials placed before me. 5. Requirement for registration as head load worker is only to the extent that the person applying must be an able body person who is in a position to work as a head load worker. (see **WP(C) NO. 5765 OF 2021** **5** judgment in _**Gangadharan C.P.** [supra]_ ) 6. Whether the registration can be granted to the workers desirous of working as head load workers in a scheme covered area where other pool of workers is available came to be considered by the Hon'ble Division Bench of this Court in the matter of **Gangadharan C.P.** (supra). Following are the observations of this Court: “17. Yet another aspect to be noted is that the status of the persons, who are the existing registered unattached workers in the area, who get aggrieved if any order is passed by the registering authority granting registration to more number of workers in the area and thus enabling them to prefer an appeal in terms of R.26C of the Rules, was made with reference to the right to live, which was declared as inclusive over right to livelihood as made clear by the Apex Court in Olga Telli's case and DTC case (cited supra). Applying the very same logic and reasoning, this Court is of the view that a similar right is there for a person, who becomes eligible, to get registered and to eke out his livelihood in the area. On a given date, a person may not be eligible but on attaining the eligibility, particularly on attaining majority and on feeling the need to maintain his family, [which may be consisting of different persons/dependents/patients/aged parents/widows/children and the like], at least by doing some loading or unloading operations, it **WP(C) NO. 5765 OF 2021** **6** definitely amounts to his right to live, which naturally includes the right to livelihood as well. This constitutional right to the person concerned cannot be denied to him merely for the reason that somebody else, who has already got berth may have to adjust a bit more with the available infrastructure. Nobody can contend that those who became fortuitous to have obtained registration earlier could alone continue as such, denying similar rights to the others . Under such circumstances, it is always for the statutory authorities to regulate the extent of work available among the eligible hands by appropriate means/measures, either by way of rotation or otherwise and it is not by promoting only one lot and pushing down the other lot for ever. As such, even though the already existing registered unattached workers could be said as persons aggrieved on granting registration to more persons in the area and hence are eligible to prefer an appeal in terms of R.26C, it is for the appellate authority to consider all these aspects to an appropriate extent, giving effect to the scheme of the statute, without compromising the fundamental principle of equality before law and such other relevant provisions. In the instant case, since the registration sought for by the writ petitioners was in respect of 'attached workers' of the establishment and since the appellants are admittedly the registered unattached workers in the area, they could never have objected to such registration under any circumstance. No law or binding precedent is brought to the notice of this Court, to the contrary, so as to entertain the claim mooted by the appellants. The statutory authorities, particularly the registering authority and the appellate authority **WP(C) NO. 5765 OF 2021** **7** failed miserably in this regard, which has been rightly intercepted by the learned single Judge by setting aside the orders concerned. We hold that the verdict passed by the learned single Judge is perfectly within the four walls of law and is not assailable under any circumstance. Interference is declined and appeal is dismissed accordingly. No cost.” 7. In the light of the ratio laid down by the Hon'ble Division Bench of this Court in the matter of **Gangadharan C.P.** (Supra), the impugned orders cannot be sustained and therefore those are quashed and set aside. The 3[rd] respondent is directed to grant registration to the petitioners as head load workers under Rule 26 A of the Kerala Head Load Workers Rules, 1978 and to do all consequential acts accordingly. ## **Sd/-** **A.M.BADAR JUDGE** ``` SSK/04/08 ``` **WP(C) NO. 5765 OF 2021** **8** ## **APPENDIX OF WP(C) 5765/2021** |**PETITIONER EXHIBITS**|| |---|---| |**EXHIBIT P1**|**TRUE COPY OF THE MUSTER ROLL OF THE FIRM FOR**| ||**THE MONTH OF DECEMBER, 2020.**| |**EXHIBIT P2**|**TRUE COPY OF THE MUSTER ROLL OF THE FIRM FOR**| ||**THE MONTH OF JANUARY 2021.**| |**EXHIBIT P3**|**TRUE COPY OF THE MUSTER ROLL OF THE FIRM FOR**| ||**THE MONTH OF FEBRUARY, 2021.**| |**EXHIBIT P4**|**THE TRUE COPY OF THE ORDER ISSUED BY THE**| ||**ASSISTANT LABOUR OFFICER, IRITTY DATED**| ||**26/06/2020 BEARING NO.2/2020(3).**| |**EXHIBIT P4(A)**|**TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P4**| ||**ORDER DATED 26/06/2020.**| |**EXHIBIT P5**|**THE TRUE COPY OF THE ORDER ISSUED BY THE 2ND**| ||**RESPONDENT DISTRICT LABOUR OFFICER DATED**| ||**11/11/2020 BEARING NO.G(3) 1791/20.**| |**EXHIBIT P5(A)**|**TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P5**| ||**ORDER DATED 11/11/2020 IS PRODUCED HEREWITH.**| |**EXHIBIT P6**|**THE TRUE COPY OF THE JUDGMENT IN 2016(5) KHC**| ||**238 (GANGADHARAN C.P. & ANOTHER VS. ABDUL NASIR**| ||**& OTHERS).**| |**EXHIBIT P7**|**THE TRUE COPY OF THE APPEAL SUBMITTED BY 1ST**| ||**PETITIONER AMAL GOPI DATED 28/07/2020 BEFORE**| ||**THE DISTRICT LABOUR OFFICER, KANNUR.**| |**EXHIBIT P7(A)**|**TRUE COPY OF ENGLISH TRANSLATION OF EXT.P7**| ||**APPEAL DATED 28/07/2020.**| ## **RESPONDENT'S EXHIBITS:NIL** SSK //TRUE COPY// PA TO JUDGE