ASIATIC TRANSPORTS v. STATE OF KERALA & OTHERS

W.P.(C).No.22388/22 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 30[TH] DAY OF AUGUST 2022 / 8TH BHADRA, 1944 WP(C) NO. 22388 OF 2022** ## **PETITIONER:** ASIATIC TRANSPORTS, REPRESENTED BY ITS PROPRIETOR, MR. K.M. NASSARUDDIN. H. NO. XXIII/624, PALLIKUNNIL HOUSE, BYE-PASS ROAD, NETTOOR, ERNAKULAM – 682040. BY ADVS. P.RAMAKRISHNAN PREETHI RAMAKRISHNAN (P-212) T.C.KRISHNA C.ANIL KUMAR ASHA K.SHENOY PRATAP ABRAHAM VARGHESE GOKUL KRISHNA ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001 2 STATION HOUSE OFFICER, MULAVUKAD POLICE STATION, PONNARIMANGALAM, ERNAKULAM - 682504 3 GATEWAY DISTRIPARKS (KERALA) LTD., REPRESENTED BY ITS DIRECTOR, CONTAINER FREIGHT STATION, MAIN ROAD, NH-966A, VALLARPADAM, ERNAKULAM - 682504 W.P.(C).No.22388/22 2 4 ERNAKULAM DISTRICT HEADLOAD AND GENERAL WORKERS CONGRESS (INTUC), REPRESENTED BY ITS GENERAL SECRETARY, INTUC BHAVAN, INTUC ROAD, VALANJAMBALAM, ERNAKULAM - 682016 5 ERNAKULAM JILLA CONTAINER THOZHILALI SANGHAM (BMS), REPRESENTED BY ITS SECRETARY, BMS OFFICE, I.S. PRESS ROAD, ERNAKULAM - 682018 6 HEAD LOAD AND GENERAL WORKERS UNION (CITU), REPRESENTED BY ITS DISTRICT PRESIDENT, KARL MARX BUILDING, NEAR TOWN HALL, BANNERJI ROAD, ERNAKULAM 682 018 7 KERALA HEADLOARD WORKERS WELFARE BOARD, ERNAKULAM DISTRICT COMMITTEE, KUMMANCHERY BUILDING, T.D. ROAD, KOCHI 682 035. REPRESENTED BY ITS CHAIRMAN. BY ADVS. M.GOPIKRISHNAN NAMBIAR MILLU DANDAPANI V.P.PRASAD SRI.S.KRISHNA MOORTHY, SC, KHWWB K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN NAYANPALLY RAMOLA ## **OTHER PRESENT:** T.K.SHAJAHAN-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.08.2022, THE COURT ON 30.08.2022 DELIVERED THE FOLLOWING: W.P.(C).No.22388/22 3 # **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** **W.P.(C).No.22388 of 2022** **= = = = = = = = = = = = = = = = Dated this the 30[th] day of August, 2022** ## **JUDGMENT** ## 1.This writ petition is filed seeking the following relief:- “i) issue a writ of mandamus or any other appropriate writ, order or direction directing the 2[nd] Respondent to afford effective and adequate police protection for free ingress and egress of the petitioner’s workmen, contractors, visitors, staff, other staff,other stake holders and their vehicles to and from the Container Freight Station of the 3[rd] respondent, located in an 6.5 acres in Sy No. 235/7 in Ernakulam District, Kanayannur Taluk, Mullavukad Village, Mullavukad Desam, Mullavukad Panchayat (opp. International Container Transhipment Terminal, Vallarpadam); ii)issue a writ of mandamus or other appropriate writ, order or direction, directing the 2[nd] and 3[rd] respondents to ensure that law and order is strictly maintained within the Container Freight Station of the 3 respondent and to ensure that no obstruction, protest,morcha,dharna or other demonstrations take place within 500 meters from the boundaries of the extent of 6.5 acres in Sy No. 235/7 in Ernakulam District, Kanayannur Taluk, Mullavukad Village. Mullavukad Desam, Mullavukad Panchayat (opp. International Container Transhipment Terminal, Vallarpadam); W.P.(C).No.22388/22 4 iii) issue a writ of mandamus or other appropriate writ, order or direction, directing the respondent nos. 4 to 6, their members and persons at their behest or under their leadership to refrain from Obstructing or causing any threat to the manpower supplied by the petitioner at the Container Freight Station of the 3[rd] respondent; iv) issue a writ, order or direction declaring that the Kerala Headload Workers Act. 1978 and the rules, regulations and schemes framed thereunder do not apply to the customsnotified Container Freight Station of the 3[rd] respondent located in an extent of 6.5 acres in Sy No. 235/7 in Ernakulam District, Kanayannur Taluk, Mullavukad Village, Mullavukad Desam, Mullavukad Panchayat (opp. International Container Transhipment Terminal, Vallarpadam); v) issue a writ, order or direction declaring and holding that the respondent nos. 4 to 6, their members and persons at their behest or under their leadership have absolutely no right to obstruct or interfere with the work being done by the manpower supplied by the petitioner at the CFS of the 3[rd] respondent; “ 2.Heard the learned counsel for the petitioner, the learned Government Pleader as well as the the learned counsel appearing for respondents 3, 4 to 6 and the 7[th] respondent. W.P.(C).No.22388/22 5 3.The petitioner contends that it is a proprietary concern engaged in the business of clearing forwarding and transportation and is a contractor of the 3[rd] respondent, which is the notified custodian of goods by the Commissioner of Customs at Container Freight station (custom area) having an extent of 6.5 acres in Sy No. 235/7 in Ernakulam district, Kanayannur Taluk, Mulavukad village. It is submitted that the petitioner meets the necessary transport and labour requirements of the 3[rd] respondent. The work of handling goods which are meant for export/import and stuffing/destuffing of containers are entrusted to the petitioner. It is submitted that the petitioner had been deploying its workers to the 3[rd] respondent for properly handling the goods and most of the works are done by mechanical devices including forklift. The petitioner had 11 workers handling goods in the Container Freight Station and if the requirement of labour cannot be met by petitioner's own workers, the petitioner engages the pool workers available in the area. It is stated that though the petitioner has a right to engage workers of W.P.(C).No.22388/22 6 his choice in the Container Freight Station, respondents 4 to 6 have been demanding that only their members can be engaged in the handling of goods. It is stated that they have taken law into their own hands and are threatening the workers of the petitioner. Though the petitioner had preferred complaints before the police, no help is forthcoming. 4.The learned counsel for the petitioner submits that Section 8 of the Customs Act, 1962 provides for notification specifying the limits of customs area. It is submitted that the Exhibit P1 notification provides that the area having an extent of 6.5 Acres in front of the International Container Transhipment Terminal, Vallarpadam is a customs area. Section 45 of the Customs Act provides for the appointment of the custodian and imposes restrictions on custody and removal of imported goods in a customs area. It is contented that the 3[rd] respondent, who is the custodian of goods in the customs area, has entrusted the work of stuffing and de-stuffing of containers to the petitioner and that since the Headload W.P.(C).No.22388/22 7 Workers Act is totally inapplicable to the customs area, the petitioner was entitled to carry out the loading and unloading activity without any let or interference from the contesting party respondents. The learned counsel for the petitioner also places reliance on decision of this Court in **Hindustan Latex Employees Welfare Society and another v. Trivandrum District Headload and General Workes's Union and others** [2010 (4) KHC 183] to contend that the Headload Workers Act, the rules and schemes framed thereunder are not applicable to a customs area, as notified under Section 8 of the Custom Act and that even in case the petitioner has sought registration, as an employer under the provision of the Headload Workers Act, that will not extend the applicability of the Act to a customs area, in view of the specific provision with regard to applicability as provided under the said Act. An unreported decision of another Division Bench in W.P.(C).No.15595 of 2014 is also relied on to contend that a customs bonded area or a special economic zone is outside the preview of the Headload Workers Act and that under the guise of claiming loading and unloading work, W.P.(C).No.22388/22 8 the pool workers cannot obstruct the work carried out by the petitioner in stuffing and de-stuffing operations, which is a specialised job. 5. Detailed counter affidavits have been placed on record by respondents 4 to 6 as well as by the 7[th] respondent. Respondents 4 to 6 contend that the area in question is a Scheme Covered Area and that the contesting respondents have obtained registration under the Kerala Headload Workers Rules and the Scheme formulated therein. It is submitted that Exhibit R6 (a) memorandum of settlement was entered into between the petitioner and respondents 4 to 6. It is submitted that in violation of Exhibit R6(a) agreement the petitioner has deployed “North Indian workers” for loading and unloading and denied work to the respondent workers. It is submitted that the workers engaged by the petitioner do not have any registration to work in a scheme implemented area and that the intention of the petitioner is to escape the levy as provided in the scheme. It is further contended that the notification as a customs area is only for W.P.(C).No.22388/22 9 the supervision of the work carried out by the 3[rd] respondent at the instance of the customs authorities and the Customs Department has been functioning in a property owned and operated by the Dubai Port World and the area is not under direct control of the Central Government. It is contented that the Kochi International Container Transhipment Terminal is a part of the Cochin Port Trust wherein the Headload Workers Act and Scheme is applicable. It is submitted that the petitioner is not entitled to any of the reliefs as sought for. 6. The 7[th] respondent has also placed a counter affidavit on record supporting the contentions of respondents 4 to 6. It is contended that there are 35 registered workers in the Vallarpadam pool area of Ernakulam District where the Headload Workers Scheme is made applicable. It is submitted that the petitioner had been distributing an average of nearly five lakhs rupees per month as wages to the pool workers through the Board on the strength of Exhibit R7(A) registration as employer under the Board. The deposit ledger and work cards are also produced. It is W.P.(C).No.22388/22 10 submitted that the petitioner and the 3[rd] respondent had executed a memorandum of settlement with the trade unions representing the workers for fixing/revising wages and other service conditions and the memorandum of settlements of 2013 and 2016 are produced as Exhibits R7(E) and R7(F). It is contended that the establishment of the petitioner or the 3[rd] respondent are not owned or controlled by the Central Government and hence the Kerala Headload Workers Act, 1978 is squarely applicable to these establishments. It is further submitted that the employer had been denying work to registered pool workers for the last months and migrant workers without registration are engaged to do the loading and unloading works. It is stated that though conciliation was attempted by the Board, the petitioner failed to attend the same. It is further contended that the petitioner, who is registered with the Board and is availing the services of the registered pool workers cannot engage any workers of its choice, unless they have registration under Rule 26A in a Scheme Covered Area .The decision in **John K Paul v. State of Kerala** [ 1998 (2) KLT 887] is also relied on. W.P.(C).No.22388/22 11 7. The learned counsel appearing for the 3[rd] respondent would also contend that the 3[rd] respondent is a custodian of the customs area and that all its activities are regulated by the customs authorities. Once a notification is issued under Section 8 of the Customs Act, the area in question becomes a customs area and would automatically be exempted from the provisions of the Kerala Headload Workers Act. It is, therefore, contended that the contention raised by the respondents that the customs area is notified only for the purpose of inspection by the customs is completely untenable. 8. I have considered the contentions advanced. The Kerala Headload Workers Act, 1978 is to come into force on such date as the Government may by notification in the gazette appoint. By SRO No.589 of 1981 the Act was notified providing that the provisions of the Act would come into force in respect of all establishment except those establishment owned or controlled by the Central Government. The customs area in question has been notified by Ext.P1 W.P.(C).No.22388/22 12 notification dated 18.4 2012 . 6.5 Acres of land in Mulavukad village, Kanayannur taluk has been notified as 'customs area' under the Section 8 of customs Act. By Ext.P2. the 3[rd] respondent has been notified as the custodian of the customs area under Section 45 of the Customs Act. 9.Section 8 of the Customs Act reads as follows:- “Power to approve landing places and specify limits of customs area.—The [Prinicpal Commissioner of Customs or Commissioner of Customs] may, (a) approve proper places in any customs port or customs airport or coastal port for the unloading and loading of goods or for any class of goods; (b) specify the limits of any customs area.” ## 10.Section 45 of the Customs Act reads as follows:- “Restrictions on custody and removal of imported goods.— (1) Save as otherwise provided in any law for the time being in force, all imported goods, unloaded in a customs area shall remain in the custody of such person as may be approved by the Principal Commissioner of Customs or Commissioner of Customs] until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII. (2) The person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time being in force, W.P.(C).No.22388/22 13 - (a) shall keep a record of such goods and send a copy thereof to the proper officer; (b) shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer. ( or in such manner as may be prescribed) (3) Notwithstanding anything contained in any law for the time being in force, if any imported goods are pilferred after unloading thereof in a customs area while in the custody of a person referred to in sub-section (1), that person shall be liable to pay duty on such goods at the rate prevailing on the date of delivery of an arrival manifest or import manifest or, as the case may be, an import report to the proper officer under section 30 for the arrival of the conveyance in which the said goods were carried.” - 11.A Division Bench of this Court in **Hindustan Latex Employees Welfare Society and another v. Trivandrum District Headload and General Worker's Union and** **others** [2010 (4) KHC 183] has considered the applicability of the Headload Workers Act and held that the Act is not applicable to Central Government establishments. In a later unreported decision dated 9.3..2016 in W.P.(C).No.15595 of 2014 also a Division Bench of this Court held with regard to the very specific area that is, the Vallarpadam customs W.P.(C).No.22388/22 14 bonded area that the pool workers, who are not even entitled to entry into the customs area without permission from the petitioner cannot obstruct the stuffing and de-stuffing operations carried out by the custodian or its contractors in customs areas. 12.Once an area is notified under Section 8 of the Customs Act as a customs area, I fail to see how the respondents can raise the contention that the area would not be exempt from the provisions of the Kerala Headload Workers Act, in view of the specific exclusions in the notification with regard to applicability of the Act. The Division Bench in the **Hindustan Latex's** case specifically considered the question and held even a secondary packing unit of the 2[nd] petitioner, a Government of India Enterprise and a separate legal entity and a corporate body, is exempted from the provision of the Kerala Headload Workers Act, since the Establishment of the 2[nd] petitioner is under the control of the Central Government. It was, therefore, held as under:- “ 15. Even though a part of the activities to be carried on by the second petitioner in its establishment is permitted to be carried on by the first petitioner, it may not cease to be an establishment W.P.(C).No.22388/22 15 under control of the Central Government. We must bear in mind the object of the exclusionary part of Ext. P4 Notification which is to free the activities carried on in the establishment of a Central Government Enterprise from the trammels of the law of headload work prevalent in the State of Kerala. We must notice that in the Notification, an exemption is granted in respect of an Establishment. It does not specifically refer to the word 'Employer'. The work done by the first petitioner is secondary packing which is work part and parcel of the work of the second petitioner and that too carried on in the Establishment under control of the second petitioner, admittedly a Central Government Enterprise. In such circumstances, we would think that the petitioners cannot be denied the benefit of the exemption granted in favour of Establishments owned or controlled by the Central Government as postulated in Ext. P4 Notification.” 13. Having considered the contentions advanced on either side and in view of the provisions of Section 8 and Section 45 of the Customs Act, I am of the opinion that the contention raised by the petitioner that the customs area where the stuffing and de-stuffing activities are being carried out by the petitioner exempt from the provisions of the Kerala Headload Workers Act is a sound proposition. Even if the customs area is not specifically owned by the Central Government, it is definitely an area controlled by the customs in all respects W.P.(C).No.22388/22 16 and therefore an establishment to which the provisions of Kerala Headload Workers Act 1978, the Rules or the schemes made thereunder do not apply. The mere fact that the petitioner is engaging the pool workers when their own workers are not sufficient to carry out the activities or that the petitioner has obtained registration under the Act and the scheme would not, by itself, give the respondents a right to contend that the loading and unloading activities in the customs area is to be carried out only by engaging the registered pool workers. The question whether the petitioner has any other activity outside the establishment controlled by the Central Government and is voluntarily engaging the pool workers having registration under the Kerala Headload Workers Rules is not a question which arises for consideration in this writ petition. The contention here is with regard to the obstruction caused to loading and unloading activities within the customs area, which according to me, the respondents have no right to indulge in. 14.In the above view of the matter, the writ petition is allowed. W.P.(C).No.22388/22 17 It is declared that the contesting respondents have no right to obstruct the loading-unloading activity being carried on within the premises of the 3[rd] respondent by utilising workers and equipment of its choice. In case of any illegal obstruction by respondents 4 to 6 to the stuffing or de-stuffing or other activities carried out by the petitioner within the customs area, the petitioner may inform the Station House Officer who shall look into the complaint and afford adequate protection to the petitioner and the workers engaged by him. This will not stand in the way of the petitioner engaging pool workers in case of need. The protection as granted above will be applicable only in relation to the customs area and in case of any loading-unloading work being carried out by the petitioner in scheme covered areas outside the limits of such area, the petitioner will have to engage registered headload workers, who posses identity cards issued by the competent authority. Writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.22388/22 18 ## **APPENDIX OF WP(C) 22388/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF NOTIFICATION NO. 03/2012 DATED 18.04.2012 APPROVING THE AREA OF THE 3RD RESPONDENT. - Exhibit P2 TRUE COPY OF NOTIFICATION NO. 04/2012 DATED 19.04.2012 APPOINTING THE 3RD RESPONDENT AS THE CUSTODIAN. - Exhibit P3 TRUE COPY OF TRADE FACILITY NO. 08/2012 DATED 03.05.2012 SPECIFYING THE PROCEDURE TO HANDLE GOODS. - Exhibit P4 TRUE COPY OF COMPLAINT DATED 05.07.2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. RESPONDENT EXHIBITS Exhibit R6(A) TRUE COPY OF THE MEMORANDUM OF SETTLEMENT DATED 18/08/2021 Exhibit R6(B) TRUE COPY OF THE COMPLAINT DATED 22/07/2022 - Exhibit R7(A) TRUE COPY OF THE APPLICATION FOR REGISTRATION AS EMPLOYER OF ASIATIC TRANSPORTERS. Exhibit R7(B) TRUE COPY OF THE DEPOSIT LEDGER FOR DEPOSIT MASTER ID 107022017544 OF THE EMPLOYER IN BOARD. Exhibit R7(C) TRUE COPY OF THE WORK CARD SUBMITTED BY THE EMPLOYER TO THE BOARD ON 16.06.2022. ## W.P.(C).No.22388/22 19 Exhibit R7(D) TRUE COPY OF THE WORK CARD SUBMITTED BY THE EMPLOYER TO THE BOARD ON 29.06.2022. Exhibit R7(E) TRUE COPY OF THE MEMORANDUM OF SETTLEMENT DATED 18.04.2013 EXECUTED BY THE PETITIONER AND 3RD RESPONDENT. Exhibit R7(F) TRUE COPY OF THE MEMORANDUM OF SETTLEMENT DATED 29.08.2016 EXECUTED BY THE PETITIONER AND 3RD RESPONDENT. True copy PS to Judge