Cheereth Metals v. Deputy Superintendent of Police, Puthencruz; Head Load and General Workers Union (A.I.T.U.C), Puthencruz Unit; C.I.T.U Head Load Workers Union Puthencruz; I.N.T.U.C Head Load Workers Union Puthencruz; Head Load Workers Welfare Board Puthencruz

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 5[TH] DAY OF DECEMBER 2022 / 14TH AGRAHAYANA,** ## **1944** ## **WA NO. 1752 OF 2022** **AGAINST THE JUDGMENT IN WP(C) 31692/2022 DATED 16.11.2022 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** CHEERETH METALS, CHURCH ROAD,PUTHENCRUZ, ERNAKULAM REPRESENTED BY ITS MANAGING PARTNER SAJEE C.M., S/O C.V. MATHAI, AGED 64 YEARS. , PIN - 682308 BY ADV BIJU ABRAHAM ## **RESPONDENTS/RESPONDENTS:** 1 THE DEPUTY SUPERINTENDENT OF POLICE, PUTHENCRUZ POLICE STATION, PUTHENCRUZ, PIN - 682308 2 HEAD LOAD AND GENERAL WORKERS UNION (A.I.T.U.C), PUTHENCRUZ UNIT REPRESENTED BY ITS SECRETARY, PIN - 682308 3 C.I.T.U HEAD LOAD WORKERS UNION PUTHENCRUZ, POOL NO. 39, REPRESENTED BY ITS SECRETARY, PIN - 682308 4 I.N.T.U.C HEAD LOAD WORKERS UNION PUTHENCRUZ, POOL NO. 39, REPRESENTED BY ITS SECRETARY, PIN - 682308 5 HEAD LOAD WORKERS WELFARE BOARD PUTHENCRUZ REGIONAL OFFICE, PUTHENCRUZ REPRESENTED BY ITS CHAIRMAN.PIN - 682308 BY SRI.T.K.VIPINDAS, SR.GP SRI.SREEJITH V.S., GP K.S.ARUN KUMAR SRI.S.KRISHNAMURTHY, SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Writ Appeal No. 1752/2022** **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------Writ Appeal No. 1752 of 2022 --------------------------------------------Dated this the 05[th] December, 2022** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The writ petitioner is in appeal from the judgment of the learned Single Judge which declined the prayer for police protection to carry out the work of loading and unloading in the appellants establishment, by workers registered under Rule 26A of the Kerala Headload Workers Rules 1981 (for brevity, the Rules 1981). The appellant before the learned Single Judge contended that he has three registered workers under Rule 26A, as seen from Exts.P2 to P4, who were sufficient to carry out the loading and unloading work in their establishment. The appellant also relied on the judgment at Ext.P5, of a Division Bench of this Court. The respondent Unions appeared before the learned Single Judge and claimed that the area is covered by a Scheme under the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme 1983, and that the workers in the pool constituted under **Writ Appeal No. 1752/2022** **3** the Scheme has an exclusive claim and priority to the work carried on in the scheme covered area. It was also pointed out that Ext.R2A settlement entered into between the 2[nd] respondent Union and the Merchant's Association provides for employment of the pool workers for specific work and an individual worker or an employer cannot seek a right of his own, which is in divergence to the terms of the agreement. It was also argued that the registration granted under Rule 26A by the Assistant Labor Officer is challenged in two appeals before the District Labor Officer, the Appellate Authority under the Kerala Headload Workers Act, 1978; by both parties. 2. The learned Single Judge noticed Ext.R2A agreement, which according to the learned Single Judge, is not disputed by the petitioner. It was also observed; neither is a contention raised that they are not bound by the said agreement. Finding that the contention raised by the petitioner is only with respect to the right to carry on the loading and unloading work by their own registered workers, it was noticed that the 2[nd] respondent has no dispute with respect to the work carried on by the registered workers except those to be conceded to them as per Ext.R2A settlement. The claim **Writ Appeal No. 1752/2022** **4** of the 2[nd] respondent was only confined to unloading of materials coming to the premises which according to them was specifically allotted to the Union by a bipartite settlement which has also fixed the wages payable. The learned Single Judge refused to grant the prayer sought and left the parties to agitate their cause before the Appellate Authority. 3. Before us, Sri. Biju Abraham reiterated the contentions in accordance with his pleadings and asserted the appellant’s right, flowing from the Act and Rules, as judicially recognized, especially by Ext.P5 judgment. Sri. T.C. Krishna appearing for the Union however points out that the order in Ext.R2B specifically directs the arrangement as per Ext.R2A settlement to be continued. The registration under Rule 26A does not confer the registered head load workers with any better right than that available under Ext.R2A. It is asserted that since both parties are in appeal from the order at Ext.R2B; which the appellant failed to produce before the learned Single Judge, it is best in the scheme of things that there is no interference caused to the impugned judgment and the parties left to agitate their cause before the Appellate Authority. 4. The appellant does not dispute Ext.R2A agreement **Writ Appeal No. 1752/2022** **5** entered in to between the Merchant's Association, of which he is a member, and the Union of head load workers attached to the pool constituted under the Scheme. The agreement also specifically speaks about the right of the 2[nd] respondent Union to unload the goods coming to the establishments while the loading works could be carried out by any person engaged by the owner of the establishment (clause 11). However, this does not restrict the establishment from having their own registered employees who can carry out the entire loading and unloading work of the establishment. It is judicially recognized right from the Full Bench decision _Raghavan v Superintendent of Police 1998 (2) KLT 732 (F.B)_ and reiterated in _Theresa Goerge v. Sub Inspector of Police 2015 1 KLT 485 (LB)_ that an employer can have attached workers for carrying on the loading and unloading work, if they are principally employed for such work; but they are liable to get registered under Rule 26A, failing which, in a Scheme covered area an employer cannot engage own workers for carrying out the headload work in the establishment. In other words, within a Scheme covered area, the headload work has to be conceded to the workers of the pool constituted under the Scheme. However, if the **Writ Appeal No. 1752/2022** **6** owner of an establishment desires to carry on the loading and unloading work by his own employees, such employees principally employed for carrying out the loading and unloading work, should have registration under Rule 26A. Ext.P5 judgment relying on the decisions of the Full Bench and the Larger Bench drew a distinction between attached and not attached workers. The workers not attached to an establishment are those who are employed through a contractor or from a duly constituted pool in Scheme covered areas, who would require a registration under Rule 9A of the Act. However, there is no such requirement in so far as an attached worker who has to only register himself under Rule 26A. The requirement for such registration was also found to be, an engagement for such loading and unloading work in the establishment, by the owner. Here, the registered workers are the attached workers of the appellant's establishment. 5. Rule 26A permits any headload worker to submit his application for registration to the Registering Authority who is the Assistant Labor Officer. The Registering Authority is required to then issue notice to the employer or contractor from whom the applicant claims work and also to the Chairman of the Local **Writ Appeal No. 1752/2022** **7** Committee, if it is a Scheme covered area. The Registering Authority, after hearing the parties, registers the applicant and issues identity card which enables such registered employee to work as an attached worker, in which circumstance, there would be exclusion of the pool workers under the Scheme. In the present case, though there is an agreement as seen from Ext.R2A between the Merchant’s Association and the Union regarding the terms of employment including rate of wages for various items, which is applicable up to 3.10.2023; it does not interdict an individual merchant from engaging his own workers for loading and unloading, which workers can also apply for registration under Rule 26A. 6. In the present case, it is very evident from Ext.R2B that on an inspection, the three applicants were found to be engaged in the loading and unloading work, based on which the registration was granted. Once the registration is granted, it is not for the authority to specify as to the work allotted to such registered workers or then insist on certain works to be granted to the pool workers. The power of registration does not enable the authority to further regulate the employment of the registered workers, by the **Writ Appeal No. 1752/2022** **8** employer with whom the registered worker is attached. 7. True, there are appeals pending by both parties before the appellate authority. Obviously, the appeal filed by the Union is against the registration granted to the three workers and the appeal filed by the employer is against the restriction placed on the work allotment by the registering authority. We are not told whether there are appeals pending from the rejection of registration to the other two employees. Though the restriction imposed by the registering authority based on Ext.R2A is one of the issues pending in appeal, we cannot be mute spectators when a statutory authority oversteps the jurisdiction conferred, as we find in Ext.R2B. We hence set aside the judgment of the learned Single Judge and permit the appellant to carry on the loading and unloading work in their establishment, with three registered workers. We make it clear that, if there is any additional work, it has to be conceded to the pool workers and there shall be no engagement of workers for loading and unloading, other than the three registered workers. If any obstruction is caused to such loading and unloading work carried on by the three registered workers, definitely the police would interfere and avert it, on a **Writ Appeal No. 1752/2022** **9** complaint made by the appellant to the Station House Officer. We desire that the appeal filed by the Union would be considered, if possible, within a period of one month from the date of receipt of a certified copy of this judgment. We make it clear that the restriction to the work made in Ext.R2B is clearly beyond the scope of the jurisdiction of the Registering Authority. The writ appeal stands allowed with the above observations. - **Sd/** **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** uu