Bon Cargos Private Limited v. Sub Inspector of Police, Palakkad Town South Police Station, Palakkad; District Committee, Kerala Headload Workers Welfare Board, Palakkad; Assistant Labour Officer, Second Circle, Department of Labour, Palakkad; Sabareesh (Pool Leader)

1 WPC 32577/2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945 ``` ## **`WP(C) NO. 32577 OF 2023`** ## **`PETITIONER/S:`** ``` BON CARGOS PRIVATE LIMITED, (HAVING REGD OFFICE AT MYLAKKAD P.O KOTTIYAM KOLLAM DISTRICT) BRANCH: PALAKKAD, BUILDING NO.260/3-27, MANAPPULLIKKAVU VAZHAKKADAVU PALAKKAD REPRESENTED BY ITS BRANCH MANAGER MANOJ KUMAR, AGED 54 YEARS, S/O.RAJAN, PARAYUNPADIKKAL HOUSE, ``` ``` BY ADVS.M.A.ABDUL HAKHIM JOSEPH GEORGE ``` ## **`RESPONDENT/S:`** - `1 THE SUB INSPECTOR OF POLICE,PALAKKAD TOWN SOUTH POLICE STATION PALAKKAD, PIN - 678013` - `2 THE SUB INSPECTOR OF POLICE,PALAKKAD TOWN SOUTH POLICE STATION PALAKKAD, PIN - 678013` - `3 THE DISTRICT COMMITTEE,KERALA HEADLOAD WORKERS WELFARE BOARD, VALAKKAD PALAKKAD REPRESENTED BY ITS SECREARY, PIN - 678001` - `4 ASSISTANT LABOUR OFFICER SECOND CIRCLE DEPARTMENT OF LABOUR CIVIL STATION COMPLEX VALAKKAD, PALAKKAD, PIN - 678001` - `5 SABAREESH,POOL LEADER POOL NO K2, KADAMKODE SUB COMMITTEE UNDER THE DISTRICT COMMITTEE UNDER THE KERALA HEADLOAD WORKERS (REGULATION OF EMPLOYMENT AND WELFARE) SCHEME 1983 KADAMKODE, MANAPPULLIKKAVU,VAZHAKKADAVU, PALAKKAD, PIN - 678013 BY ADVS.Thomas Abraham/C.S.AJITH PRAKASH ANCY THANKACHAN(K/1704/2019)/T.K.DEVARAJAN(K/253/1993) BABU M.(K/1324/2019)/NIDHIN RAJ VETTIKKADAN(K/000060/2020)` ## **`OTHER PRESENT:`** ``` GP SREEJITH V.S ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 WPC 32577/2023 ## **JUDGMENT** (Dated this the 7[th] day of November 2023) The petitioner is a Private Limited Company engaged in cargo service having 10 branches in Kerala. Bldg.No.260/3-27, Vazhakkadavu, Palakkad was taken on lease by the petitioner on 20.6.2023 for starting its new branch at Palakkad with effect from 26.8.2023. 7 permanent employees from other branches were transferred to the new branch at Palakkad. Round-theclock, loading and unloading works are done at all the branches of the petitioner. Out of the 7 employees transferred, 3 employees are loading staff, who are working with the petitioner for the last few years. 2. When the initial work was started from 26.6.2023 with the permanent employees of the petitioner, certain head load workers under the leadership of 5[th] respondent, came to the branch and obstructed the loading and unloading work done by 3 loading staff. Because of the obstruction made by 5[th] respondent and his associates, no work was possible till date. The 3 permanent workers of the petitioner submitted applications on 13.7.2023 for registration as attached headload workers, but the 4[th] respondent, by order dated 11.9.2023, 3 WPC 32577/2023 rejected the applications holding that the petitioner has not started its branch and the 3 employees were not working as headload workers in the branch. 3. The case of the petitioner is that the branch could not be opened due to the obstruction on the part of 5[th] respondent and other headload workers in that area. The petitioner relies on the judgment of this court in **Kerala Headload Workers Welfare Board v. Nishad M. B. and others [2022 (5) KHC 367],** which declares that the attached head load workers can get registration only after the starting of headload work under the employer. So, the 5[th] respondent cannot insist that the permanent employees of the petitioner can do the loading and unloading work only after obtaining the registration. So the petitioner filed Ext.P4 petition dated 27.9.2023 to respondent Nos.1 and 2 to remove the illegal and forcible obstruction of the 5[th] respondent and the headload workers under him and to extend adequate police protection to the 3 workers of the petitioner. Since no action has been taken on Ext.P4 petition, they have approached this court seeking a writ of mandamus directing respondent Nos.1 and 2 to remove the unlawful assembly and forcible obstruction under the 5[th] respondent and permit the head 4 WPC 32577/2023 load workers under him for loading and unloading with his 3 attached workers. 4. A counter affidavit has been filed by 5[th] respondent, wherein it is contended that the police protection cannot be granted to the petitioner as he has not produced the registration cards under Rule 26A of the Kerala Headload Workers Rules 1981 (for short ‘the Rules, 1981’) of his workers. The area in question, is one coming under Kadamkode Sub Committee of the Kerala Headload Workers Welfare Board and Pool No.K2 is the pool in that area. He relies on the judgment of the full bench in **Raghavan v. Superintendent of Police [1998(2) KLT 732]** and **Manoharan S. and others v. Circle Inspector of Police, Thodupuzha & others [2010(1) KHC 931 ]** to contend for the proposition that once there is a rejection of application for registration under Rule 26A of the Rules, 1981 the aggrieved party has to file an appeal under Rule 26C of the Rules, 1981 and as such the person is not entitled to police protection. The petitioner company has to provide employment to the pool workers as long as they are not maintaining registered headload workers. Kadamkode is a rural area and the employment potential of headload workers are very minimal. Only 3 5 WPC 32577/2023 establishments are there in the said locality and therefore, the denial of the employment is affecting the livelihood of the petitioner. The pool workers are ready to work at the wage rate fixed by the District Board of Committee and therefore, there is no law and order situation warranting police interference. 5. A statement has been filed by the standing counsel on behalf of the 3[rd] respondent. It is averred that the petitioner’s establishment is situated in a scheme-implemented area under the Palakkad district committee of the Board. There are 12 registered pool workers in K2 pool for doing loading and unloading work. The 26A card applications submitted by the employees of the petitioner employer were rejected, on the ground that the petitioner establishment has not started functioning in the area and it was not possible to verify whether the applicants are actually headload workers and also on the fact that the petitioner is not maintaining any register prescribed under Kerala Headload Workers Act and Rules. The employees of the petitioner, whose applications were rejected have not preferred any appeal. Therefore, they are not registered attached workers and the area being a scheme implemented area, the petitioner is bound to engage pool workers for loading and 6 WPC 32577/2023 unloading work. The Writ Petition is filed only to circumvent the provisions of the Act, 1978 and to deny work to the registered pool workers. 6. In **Raghavan (supra)** a full bench of this court was dealing with a common question as to whether police protection can be granted for loading and unloading work in a scheme applicable area, where permanent workers of the employer was not having a registration under Rule 26A of the Rules, 1981. The full bench, after elaborately considering the provisions of the Act, as well as the various decisions of this court, held that the provisions of chapter III of the Act, 1978 are applicable to all headload Workers of the employer, coming within the definition term of the Act. The definition would take in all permanent workers attached to an establishment, as all workers engaged in the establishment from time to time. All headload workers including permanent workers attached to the establishment are liable to get registered under Rule 26A of the Rules, 1981. In areas where the scheme is made applicable, no headload worker, who is not a registered worker shall be allowed or required to work in that area. It is also necessary that such headload worker shall get registration under the provisions of the scheme. But a 7 WPC 32577/2023 headload worker, who is permanently employed, by an employer or a contractor, is not liable to get registration under the scheme. It is open to the employer to engage his permanent employee attached to his employment for loading and unloading, irrespective of the fact that whether it is an area where the scheme is not applicable or not. But where the scheme is applicable, if the employer requires additional workers, he has to get them through the committee formed under Section 18 of the Act, 1978 in accordance with the provisions of the Scheme. But in areas where there is no scheme, there is no such obligation on the part of the employer and he can engage workers of his own choice. 7. In **Manoharan (supra),** it was held by a division bench of this court that mere pendency of an application for registration cannot confer any right to do loading and unloading and only head load workers, who are registered under the Act, 1978 have the right to do loading and unloading work. 8. In **Nishad M. B (supra),** the division bench of this court held that before seeking registration as a headload worker in terms of Rule 26A of Rules, 1981, he should do headload work in the establishment and thereafter, he can seek registration in 8 WPC 32577/2023 terms of Rule 26A of the Rules, 1981. The Act, 1978 and the Rules, 1981 do not permit a person who is not attached to any establishment, to apply for registration as a headload worker without first demonstrating his capacity to do headload work in an establishment. The enquiry contemplated under Rule 26A of the Rules, 1981 for granting registration is an essential exercise to ensure that the applicant for registration is actually doing head-loading work in the establishment concerned. 9. The counsel for the petitioner argues that in tune with the dictum laid down by this court in **Nishad M.B. (supra)** case, the permanent attached workers of the petitioner have to necessarily do the head work in order to apply for registration under Rule 26A of the Rules 1981. 10. The full bench of this court in **Raghavan (supra)** has held that in the scheme-covered area, no headload worker who is not a registered headload worker shall be allowed or required to work in that area unless such headload worker gets registration under the scheme. However, it was made clear that a headload worker who is a permanent employer under the petitioner or a contractor is not liable to work under the scheme. The applications filed by the employees of the petitioner were 9 WPC 32577/2023 rejected only on the ground that the establishment has not started functioning and it is not possible to verify whether the applicants are actually headload workers. 11. As stated by the Division bench in **Nishad (supra)** ’s case, the precondition is that the employees should do headload work in the establishment before applying for registration. Since there is obstruction from the part of 5[th] respondent and his associates, the petitioner is not in a position to engage his permanent workers for doing loading and unloading work. The counsel for the petitioner further argues that even if the petitioner avails the appellate remedy since the enquiry contemplated under the Rules 1981 as to whether the applicants are working as head load work could not be fulfilled, then the appeal can only be dismissed by the appellate authority. So he seeks police protection for permanent workers to start loading and unloading work so that the competent authority can very well enquire and see the workers are actually doing head load work. The rejection of the application is the reason that the establishment has not started functioning and the verification could not be complete as to whether the applicants were in fact working as head load workers. In the said circumstances, the petitioners are entitled to 10 WPC 32577/2023 for an order from this court. In the result, this Writ Petition is allowed and respondents Nos.1 and 2 are directed to remove the unlawful assembly and illegal obstruction from the 5[th] respondent and the head load workers under him, to enable the petitioner to do the loading and unloading in Palakkad branch of the petitioner’s division with his employees. ## **Sd/-** ## . **BASANT BALAJI, JUDGE** dl/ 11 WPC 32577/2023 ## **`APPENDIX OF WP(C) 32577/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 TRUE COPY OF THE TRANSFER ORDER PASSED BY THE MANAGING DIRECTOR OF THE PETITIONER DATED 21/06/2023 ``` ``` Exhibit P 2 TRUE COPY OF THE MUSTER ROLL OF THE PALAKKAD BRANCH OF THE PETITIONER FOR THE MONTH OF JUNE 2023 DATED NIL ``` ``` Exhibit P3 TRUE COPY OF ORDER PASSED BY THE RESPONDENT NO.4 DATED 11/09/2023 ``` ``` Exhibit P4 TRUE COPY OF THE PETITION DATED 27/09/2023 SUBMITTED BY THE PETITIONER TO THE RESPONDENTS NOS. I & 2 ``` ``` RESPONDENT EXHIBITS ``` ``` Exhibit R5(a) A true copy of the 6A card issued to the 5th respondent ``` ``` Exhibit R5(b) ``` ``` A true copy of the relevant page of loading unloading rate for headload workers Palakkad district approved by the Board ``` ``` Exhibit R5(c) ``` ``` A true copy of the dispute dated 4/10/2023 raised before the ALO 2nd circle, Palakkad ```