Elixir Extracts Private Limited v. Deputy Labour Commissioner, Ernakulam and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ``` FRIDAY, THE 27[TH] DAY OF MAY 2022 / 6TH JYAISHTA, 1944 ``` ## **`WP(C) NO. 12220 OF 2022`** ## **`PETITIONER:`** ``` ELIXIR EXTRACTS PRIVATE LIMITED, KINFRA SMALL INDUSTRIES PARK, NELLAD P.O., MUVATTUPUZHA, ERNAKULAM, REPRESENTED BY ITS DIRECTOR, CIJU RAHDAKRISHNAN. ``` ``` BY ADVS. P.RAMAKRISHNAN PREETHI RAMAKRISHNAN (P-212) T.C.KRISHNA C.ANIL KUMAR ASHA K.SHENOY PRATAP ABRAHAM VARGHESE ``` ## **`RESPONDENTS:`** ``` 1THE DEPUTY LABOUR COMMISSIONER, ERNAKULAM, 4TH FLOOR, CIVIL STATION BUILDING, KAKKANAD, ERNAKULAM-682 030. ``` ``` 2THE DISTRICT LABOUR OFFICER, ERNAKULAM, 4TH FLOOR, CIVIL STATIN BUILDING, KAKKANAD, ERNAKULAM-682 030. ``` ``` 3KERALA HEADLOAD WORKERS WELFARE BOARD, PUTHENCRUZ (SUB OFFICE), CHEERATH BAHVAN, CHURCH ROAD, PUTHENCRUZ P.O., ERNAKULAM-682 308, REPRESENTED BY ITS CHAIRMAN. ``` ``` 4ERNAKULAM DISTRICT HEAD LOAD WORKERS UNION (CITU), NELLAD UNIT, NELLAD P.O., MUVATTUPUZHA-686 669, REPRESENTED BY ITS PRESIDENT. ``` ``` BY ADVS. SRI.K.S.ARUN KUMAR SRI.RAJEE P MATHEWS SRI.JUSTIN JACOB, SR. GP. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) 12220/2022 ``` ``` -2- ``` ## **`JUDGMENT`** Petitioner is a company incorporated under the provisions of the Companies Act, 1956 and is engaged in manufacturing of ayurvedic herbal extracts and other products, situated at KINFRA Park at Nellad in Ernakulam district. The aforementioned park was declared as an industrial area of the State under the Kerala Industrial Single Window Clearance Board and Industrial Township Area Development Act 1999. Petitioner’s industrial unit started functioning in the year 2003 and the raw materials used in the company are the extracts from ayurvedic plants like neem, tulsi etc., which are collected locally from other dealers and brought in vehicles to the factory situated at the aforementioned park, unloaded and sorted out separately and stacked by the skilled workers trained for the said purpose. The entire loading and unloading work in the establishment is carried out by the petitioner’s own employees who had been issued identity cards under Rule 26A(3) of the ``` WP(C) 12220/2022 ``` ``` -3- ``` Kerala Headload Workers Rules, 1981 (hereinafter referred to as ‘the Rules’, for short) as evident from Ext.P1 (a) to (j) collectively. 2. Learned counsel appearing on behalf of the petitioner submitted that the difficulty arose only in 2019 when certain headload workers represented by Ernakulam District Headload Workers Union, 4[th] respondent, caused obstruction to the functioning of the establishment. Petitioner approached this Court vide various writ petitions referred in paragraph No.3 of this writ petition and this hon'ble Court vide judgment dated 06.12.2019 in W.P.(C) No.22107/2019 and connected cases Ext.P2 directed the 4[th] respondent to approach the competent authority under the Act. 4[th] respondent submitted a complaint before the Assistant Labour Officer (ALO) resulting into the impugned order dated 05.02.2022 imposing a condition upon the establishment of the petitioner for engaging labourers from the pool. Aforementioned order was assailed by preferring an appeal H.A.No.6/2020. The said appeal has also resulted ``` WP(C) 12220/2022 ``` ``` -4- ``` into dismissal vide impugned order dated 18.03.2022 Ext.P6. Both orders are illegal and unsustainable in the eyes of law as prevention of engagement of the skilled labourers for carrying out the loading and unloading by an establishment, which have already been registered, would be in violation of fundamental right as enshrined under Article 19(1)g of the Constitution of India. Even otherwise, it is not the establishment which is required to be registered under Section 26A, only the workers who have already been issued identity cards as evident from Ext.P1 (a) to P1 (j). The establishment is not the one where the work of loading and unloading has a predominant nature and will not come within the ambit of 'establishment' under the Act. 3. On the other hand, learned counsel representing the Board submits that the nature of the activities in the establishment of the manufacturing unit of the petitioner does not involve any specialised skill and therefore the engagement of the workers from the pool as observed by the ALO and the DLO is perfectly legal ``` WP(C) 12220/2022 ``` ``` -5- ``` and justified. Said finding of fact cannot be interfered with while exercising the power under Article 226 of the Constitution of India. The manufacturing unit is located in an area where the scheme has already been promulgated under the provisions of the Act, therefore, the engagement of the labourers from the pool would help them to generate the business and sustain. 4. I have heard learned counsel for the parties and appraised the paper books. 5. The question was with regard to affording an opportunity to those who are to be affected with the registration whereas in the instant case it would not be applicable from the facts noticed above. The law on nonregistration of the workers under 26A impelling the establishment from engaging the workers from the pool is no longer res integra in view of the judgment of this court in **Manzoor v. District Labour Officer** (2021 (5) KLT 554). 6. This court in judgment cited earlier dealt with ``` WP(C) 12220/2022 ``` ``` -6- ``` the very same issue and quashed the decision in not registering the name of the headload workers. Operative portion of the same reads: **“14** . It may not be out of place in this context to refer to a Division Bench judgement of this Court in Gangadharan v. Abdul Nasir (2016 (4) KLT 592). The said decision, was considering the question whether the existing registered unattached workers in the area are entitled to be heard when an application for registration for other workers in the area are being considered. It was observed that the applicant for registration as headload worker has a constitutional right to life which cannot be denied merely for the reason that somebody else, who has already got a berth may have to adjust a bit more with the available infrastructure. It was further observed that nobody could contend that those who became fortuitous to have obtained registration earlier could alone continue as such, denying similar rights to the others. **15** . Thus, while considering an application for registration as a headload worker under R.26A of the Rules, the registering officers' look out is not whether the applicant was a headload worker or not, prior to such registration. As held in Rajeev v. District Labour Officer (2010 (4) KLT 783), the said provision has already been read down to mean that the look out for the registering officer must be only as to whether the applicant has the physique to be employed as a headload worker and also as to whether the employer is prepared to engage the applicant as ``` WP(C) 12220/2022 ``` ``` -7- ``` headload worker. There is no requirement under law that the applicant must have been working under the employer as a headload worker for becoming eligible for such registration.” 7. In the instant case, workers employed by the petitioners are already registered and have been issued identity cards as evident from Ext.P1 (a) to (j) collectively. Union could not have raised the dispute for non-employment of the members as it required a special skill pertaining to the nature of job involved in manufacturing of ayurvedic herbs. The findings recorded by both authorities commanding the petitioner to register under the Act is wholly unsustainable in the eyes of law as it is against the provisions of the statutes. Only the workers who are to be registered and not the establishment. Authorities while dealing with such applications are enjoined upon an obligation to deal with the issue in hand but not go beyond. But the instant case is one where an attempt has been made particularly by the ALO to rewrite the statute. The said procedure followed by the ALO is not appreciated. ``` WP(C) 12220/2022 ``` ``` -8- ``` For the reason aforementioned, the orders under challenge are not sustainable being abberative and repugnant and hereby quashed. Writ petition is allowed. Sd/- ``` AMIT RAWAL JUDGE ``` ``` vv ``` ``` WP(C) 12220/2022 ``` ``` -9- ``` ## **`APPENDIX OF WP(C) 12220/2022`** ## **`PETITIONER EXHIBITS`** - `Exhibit P1 TRUE COPY OF IDENTITY CARD NO.07.07.139/17 ISSUED BY THE ASSISTANT LABOUR OFFICER, PERUMBAVOOR TO SMT.REENA.` - `Exhibit P1 A TRUE COPY OF IDENTITY CARD NO.07/07/77/17 ISSUED BY THE ASSISTANT LABOUR OFFICER, PERUMBAVOOR TO SMT.SALOMI ITTAN.` - `Exhibit P1 B TRUE COPY OF IDENTITY CARD NO.07/07/78/17 ISSUED BY THE ASSISTANT LABOUR OFFICER, PERUMBAVOOR TO SMT.MALLIKA RAVEENDRAN.` - `Exhibit P1 C TRUE COPY OF IDENTITY CARD NO.07.07.140/17 ISSUED BY THE ASSISTANT LABOUR OFFICER, PERUMBAVOOR TO SMT.SUNITHA BIJU.` - `Exhibit P1 D TRUE COPY OF IDENTITY CARD NO.07/07/138/17 ISSUED BY THE ASSISTANT LABOUR OFFICER, PERUMBAVOOR TO SMT.DAISY POULOSE.` - `Exhibit P1 E TRUE COPY OF IDENTITY CARD NO.07/07/80/11 ISSUED BY THE ASSISTANT LABOUR OFFICER, PERUMBAVOOR TO SMT.VIJAYA SURENDRAN.` - `Exhibit P1 F TRUE COPY OF IDENTITY CARD NO.07.07.79/21 ISSUED BY THE ASSISTANT LABOUR OFFICER, PERUMBAVOOR TO SMT. AMBILY.P.K.` ``` Exhibit P1 GTRUE COPY OF IDENTITY CARD NO.07/07/137/17 ISSUED BY THE ASSISTANT LABOUR OFFICER, PERUMBAVOOR ``` ``` WP(C) 12220/2022 ``` ``` -10- ``` ``` TO SRI.RAJU PASWAN. ``` - `Exhibit P1 H TRUE COPY OF IDENTITY CARD NO.07/07/136/17 ISSUED BY THE ASSISTANT LABOUR OFFICER, PERUMBAVOOR TO SRI.MAHAVIR PASWAN.` - `Exhibit P1 I TRUE COPY OF IDENTITY CARD NO.07/07/76/2021 ISSUED BY THE ASSISTANT LABOUR OFFICER, PERUMBAVOOR TO MOLLY BABY.` - `Exhibit P1 J TRUE COPY OF IDENTITY CARD NO.07/07/135/17 ISSUED BY THE ASSISTANT LABOUR OFFICER, PERUMBAVOOR TO SRI.K.P.SANTHOSH KUMAR.` - `Exhibit P2 TRUE COPY OF JUDGMENT DATED 06.12/.2019 IN WPV NO.22107/2019.` - `Exhibit P3 TRUE COPY OF ORDER DATED 05.02.2020 ISSUED BY THE DISTRICT LABOUR OFFICER, ERNAKULAM WITH ENGLISH TRANSLATION.` - `Exhibit P4 TRUE COPY OF MEMORANDUM OF APPEAL HA NO.6/2020 DATED 26.09.2020 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.` - `Exhibit P5 TRUE COPY OF ORDER DATED 02.03.2022 ISSUED BY THIS HONOURABLE COURT IN WPC NO.6720/2022.` - `Exhibit P6 TRUE COPY OF ORDER DATED 18.03.2022 ISSUED BY THE 1ST RESPONDENT WITH ENGLISH TRANSLATION.`