Ansar K.B v. The Station House Officer, Kanjirappally Police Station; Kerala Head Load Workers Welfare Fund Board; The Head Load Workers (CITU) Parakkadavu Unit

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945** ## **WP(C) NO. 29300 OF 2023** ## **PETITIONER:** ANSAR K.B AGED 37 YEARS S/O. K.H.BASHEER, AGED 37 YEARS, PROPRIETOR, ANSAR TRADING, PARAKKADAVU, KANJIRAPPALLY, KOTTAYAM DISTRICT, PIN - 686507 BY ADVS. JACOB SEBASTIAN WINSTON K.V ANU JACOB KEERTHY RAJ ## **RESPONDENTS:** 1 THE STATION HOUSE OFFICER KANJIRAPPALLY POLICE STATION, KANJIRAPPALLY P.O, KOTTAYAM DISTRICT, PIN - 686507 2 THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD KOTTAYAM DISTRICT OFFICE MUNICIPAL SHOPPING COMPLEX, OPPOSITE ST' ANTONY'S COMPLEX, PRIVATE BUS STAND, NAGAMPADAM, KOTTAYAM DISTRICT, REPRESENTED BY ITS DISTRICT OFFICER, PIN – 686101. 3 THE HEAD LOAD WORKERS (CITU) PARAKKADAVU UNIT, REPRESENTED BY ITS SECRETARY, CITU OFFICE, PARAKKADAVU P.O, KANJIRAPPALLY, KOTTAYAM DISTRICT, PIN - 686507 BY ADVS. S.KRISHNA MOORTHY(ERNAKULAM) ADHIL P SHABEER ALI MOHAMED(K/000402/2019) SR. GOVT. PLEADER SMT.RESMI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W.P.(C) No.29300 of 2023** **= = = = = = = = = = = = = = = = = = Dated this the 17[th] day of October, 2023** ## **J U D G M E N T** The petitioner is the proprietor of a business concern dealing with stock and sale of rubber sheets. The petitioner has approached this Court seeking police protection for carrying out the business activities of the establishment without interference from the third respondent. The third respondent claims right to do the loading and unloading works in the establishment, for which they have no right, is the grievance. 2. I have heard learned counsel on either side and also perused the rival pleadings. 3. According to the petitioner, the area in question is not a scheme covered area. It is the further contention that, the petitioner has own permanent workers and that the work of loading and unloading of goods is not their predominant work but is only W.P.(C) No.29300 of 2023 -: 2 :- incidental. Unless the work of loading and unloading, for which the worker is employed, is of a permanent nature, the question of registration under Rule 26A and of employing pool workers does not arise at all. The learned counsel for the petitioner relies on the judgment of the Larger Bench of this Court in _**Theresa Jose v. Sub Inspector of Police, Thoppumpady and Ors. 2015 (1) KLT 485**_ . 4. It would be appropriate to refer to the pleadings in paragraph 4A of the writ petition; the same reads thus :- _“4A. The main activity in the establishment is storage and sale of rubber sheets. Farmers supply rubber sheets in small lots which are collected by the petitioner's workers. The sheets are graded in accordance with their quality and stacked; later they are cleaned/washed and dried. The rubber sheets are then stored separately as per their grade and often smoked to preserve them without losing their quality. The rubber sheets are often stored for months together and the petitioner sells them only when the market commands a good price. Before selling them the sheets are again cleaned, sorted and packed_ W.P.(C) No.29300 of 2023 -: 3 :- _with a polythene cover into bundles weighing 50 kg. These bundles are then supplied to the users of rubber sheets (rubberbased industries). At the time of sale also rubber sheets of a higher grade should not get mixed up with those of a lower grade. Even the incidental head load work in the establishment arises only occasionally when the rubber sheets are sold. This happens only once or may be twice in a month. There is no specific engagement of any worker exclusively for doing the head load work. The workers of the petitioner who are generally concerned with the other activities in the establishment take care of the incidental head load work also. That apart grading rubber sheets in accordance with their quality requires training and skill which only the petitioner's private workers do have. If rubber sheets are not properly graded and separated, poor quality rubber sheets would get mixed up with the good ones and the petitioner would end up paying higher prices to his suppliers and will not get a good price from his buyers. Thus it is essential that the entire activities in the establishment should be done by the petitioner's own workers. The limited head load work in the establishment is only a minor component among the works/activities in the establishment. Thus the petitioner's establishment will not fall under Section 2(j) of the Act and the petitioner is not obliged to engage any head load worker for_ W.P.(C) No.29300 of 2023 -: 4 :- _the incidental activities in the establishment. The establishment has commenced operation only recently. There are only 4 workers and the volume of business is also low.”_ Therefore, the predominant nature of work is not loading and unloading; the said work is only incidental, is the argument. 5. The learned Standing Counsel for the second respondent would contend that the area in question is a scheme covered area. The works of loading and unloading is an essential part of the business of the petitioner. The petitioner is obliged to register the establishment and engage the services of the registered pool workers for the loading and unloading activities of the establishment, it is contended. 6. The Larger Bench of this Court in _**Theresa Jose**_ case supra held, - _“29. We thus are of considered opinion that item No.5 of the Schedule is to be interpreted to be an establishment which_ W.P.(C) No.29300 of 2023 -: 5 :- _fulfills following three conditions: (i) An establishment is employing workers for loading and unloading of goods (ii) the work of loading and unloading for which the worker is employed, is of a predominant nature (iii) the workers employed may also be carrying on other operations incidental and connected thereto._ _30. Paragraph 21 of the Full Bench judgment in Raghavan's case (supra) has also stated that if principally, the workers are employed to carry on the work other than loading and unloading, and the loading and unloading work is only occasional, they do not come within the definition of Headload workers. The Full Bench has also rightly observed that whether the nature of work of the headload worker is predominant work or not is a question which depends on the facts of each case. To the above extent we approve the observation made by Full Bench in paragraph 21.”_ Therefore, it needs to be considered whether the workers employed by the petitioner are predominantly engaged in the loading and unloading activities of the establishment or whether such works of the employees is only incidental and occasional to the main activity. The W.P.(C) No.29300 of 2023 -: 6 :- said question is one to be decided on facts. So also as noticed, there is dispute as to whether the area in question is a scheme covered area. 7. Section 21 of the Kerala Headload Workers Act, 1978 provides a statutory mechanism for settlement of such disputes which involves factual aspects. It is only appropriate that the issue be resolved through the statutory mechanism. Resultantly, this writ petition is disposed of directing the Assistant Labour Officer to consider the issue and take the proceedings to a logical conclusion in the manner as prescribed under Section 21 of the Act. Till such proceedings attain finality, the interim order passed by this Court granting protection for the business activities of the petitioners establishment shall continue. However it is clarified that the continuance of the interim order shall not be understood as an expression by this Court on the merits of the W.P.(C) No.29300 of 2023 -: 7 :- petitioner’s contention, and that the issue has to be decided independently by the authority. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF WP(C) 29300/2023** PETITIONER EXHIBITS Exhibit-P1 A TRUE COPY OF THE LICENSE DATED 01.09.2023 ISSUED BY THE KANJIRAPPALLY GRAMA PANCHAYAT. Exhibit-P2 A TRUE COPY OF THE COMPLAINT DATED 30.06.2023 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ALONG WITH RECEIPT DATED 30.06.2023. -----