Emerald Cements v. Station House Officer, Walayar Police Station; Centre for Indian Trade Unions (CITU); Indian National Trade Union of Congress (INTUC); Kerala Headload Workers Welfare Fund Board

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 WP(C) NO. 2467 OF 2024`** ## **`PETITIONER:`** ``` EMERALDCEMENTS NEARKSIDCINVESTMENTZONE,AHALIAROAD,PAMPAMPALLAMP.O, PALAKKADDISTRICT,PIN-678621,REPRESENTEDBYITSMANAGING PARTNER,S.PALANISAMY,AGED37YEARS,S/O.SUBRAMANI, 19/130,VENKITAPURAM,VELLIYANAISOUTH,KARUR,TAMILNADU, - PIN639118. BYADVS. JACOBSEBASTIAN WINSTONK.V ANUJACOB ``` ``` RESPONDENTS: ``` ``` 1THESTATIONHOUSEOFFICER,WALAYARPOLICESTATION - WALAYARP.O,PALAKKADDISTRICT,PIN678620. 2THECENTREFORINDIANTRADEUNIONS(CITU) KANALPIRIVUUNIT,WALAYARP.O,PALAKKADDISTRICT, - REPRESENTEDBYITSSECRETARY,PIN678620. 3THEINDIANNATIONALTRADEUNIONOFCONGRESS(INTUC) KANALPIRIVUUNIT,WALAYARP.O,PALAKKADDISTRICT, - REPRESENTEDBYITSPRESIDENT,PIN678620. *ADDLR4THEKERALAHEADLOADWORKERSWELFAREFUNDBOARD A.MCOMPLEX,T.BROAD,PALAKKADDISTRICT,PIN678014, REPRESENTEDBYITSDISTRICTOFFICER *ISIMPLEADEDVIDEORDERDT.23.1.24INIA1/24. BYADVS. M.D.ROSHINI THOMASABRAHAM SMT.CSSHEEJA,SR.GP. ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 15.02.2024,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` ``` WP(C)NO.2467OF2024 ``` ``` 2 ``` ## **“CR”** ## **JUDGMENT** Emerald Cements, the petitioner herein, is a partnership firm engaged in the manufacture of Cement. This petition is filed seeking a direction to the 1st respondent to afford police protection to the petitioner and their workers for effectively carrying out the operations without any threat or obstruction from the party respondents. ## 2. Short facts are as under: The petitioner has been issued with Ext.P1 certificate under the Kerala Micro Small Medium Enterprises Facilitation Act, 2019, and categorized as “Manufacturing Enterprise.” Initiated by a cadre of innovative young entrepreneurs aiming to forge a sustainable livelihood, the enterprise embarked on establishing a cutting-edge cement manufacturing facility, ensuring that the entire production process is fully automated. The petitioner contends that from the moment raw materials enter the premises to the final stage, where finished products are mechanically loaded onto lorries via a conveyor belt system, the ``` WP(C)NO.2467OF2024 ``` ``` 3 ``` operation is designed to minimize manual labour. It is highlighted that materials are brought to the factory using Tipper Lorries outfitted with mechanical aids and state-of-the-art automated machinery and highlights the firm’s commitment to a highly efficient manufacturing process devoid of any manual headload work. It is contended that the petitioner has two operators and two helpers who are attached to the enterprise, which aspect is borne out from Ext. P4. It is contended that the workforce is optimally sized to manage the packaging and loading of cement bags, thus negating any necessity for additional manual labor. It is also urged that the incidental work of stacking the packed bags that tumble down from the conveyor belt into the lorry is carried out by the attached workers. It is further asserted that the establishment run by the petitioner will not fall under Section 2(j) of the Kerala Headload Workers Act, 1978, and is not included in the Schedule appended to the Act. It is also stated that the establishment has only recently commenced operations, and the volume of business is low. 3. The petitioner asserts that the party respondents have raised a claim that they should be provided with headload work in the establishment. They are also demanding that they should be ``` WP(C)NO.2467OF2024 ``` ``` 4 ``` compensated if the intention of the petitioner is to deprive them of their right to carry out headload work. It is contended that the workers of the Union trespassed into the premises on 16.1.2024 and obstructed the work and functioning of the factory. The petitioner apprehends that the party respondents may use force and cause harm to the petitioner and his workers if they are not provided with work, which the petitioner is not legally obliged to provide. Exasperated by the belligerence of the Union Workers, the petitioner approached the official respondents and lodged a complaint. However, they refuse to interfere with the matter. Seeking intervention and to enable the petitioner to carry on the manufacture of cement without obstruction from any quarters, they have approached this Court with this writ petition. 4. The learned Standing Counsel appearing for the Board has filed a statement controverting the contentions. It is pointed out that the establishment run by the petitioner is situated in an area covered under the Scheme, and there are about 31 pool workers therein. It is further stated that the petitioner has no headload workers who are registered under Rule 26A of the Kerala Headload Workers Rules, 1981, for headload work in the establishment. It is stated that in that view of ``` WP(C)NO.2467OF2024 ``` ``` 5 ``` the matter, only attached workers are entitled to do headload work in the establishment. 5. Sri. Jacob Sebastian, the learned counsel, at the outset, submitted that the petitioner is running an industry where Cement is manufactured using modern technology. Reliance is placed on Ext.P3 series photographs to substantiate the same. It is further pointed out that the said assertion of the petitioner is not countered in the statement filed by the 2nd respondent. It is urged that the predominant work in the factory is the manufacture of cement, and the stacking work at the final stage is merely incidental. Reliance is placed on the law laid down by a Larger Bench of this Court in **Theresa Jose**[1] , and it is urged that the definition of "establishment" in Section 2(j) of the Act, as an establishment specified in the Schedule and includes the precincts thereof, has no application to the industry run by the petitioner. It is further submitted that in view of the absence of headload work in the establishment, the provisions of the Act will not be attracted. The learned counsel would also rely on the observations in **Bhageeratha** > 1 Theresa Jose v. Sub Inspector of Police, and Others, [2015 (1) KLT 485] ``` WP(C)NO.2467OF2024 ``` ``` 6 ``` **Engineering Ltd[2]** and **Akbar P**[3] , and it is argued that when loading and unloading activity is carried out using mechanized devices, unattached headload workers cannot have any legally sustainable claim for work. It is urged that in the counter, the fact that the factory is mechanized is not disputed. Finally, reliance is placed on the observations made in **Obrin M.J.**[4] , and it is urged that where in an industrial unit, headload work is only incidental to the main work, the provisions of the Act and the Scheme will not be applicable. 6. In response, it was submitted by Sri. Thomas Abraham, that Ext.P4 muster roll is not countersigned by the labor authorities, and no reliance can be placed on the same. It is submitted that the definition of the term headload worker includes persons who are employed for stacking. The provisions of the scheme having been extended to the area, the petitioner is bound to employ the pool workers, contends the learned counsel. ## 7. I have considered the submissions and have carefully gone ## through the records. > 2 Bhageeratha Engineering Ltd v. Superintendent of Police [1999 (3) KLT 415] > 3 Akbar P v. Sub Inspector of Police [2015 (2) KHC 523] > 4 Obrin M.J. v Sub Inspector of Police and Others [2005 (3) KLT 861] ``` WP(C)NO.2467OF2024 ``` ``` 7 ``` 8. It is not disputed that the petitioner is running a Manufacturing Enterprise and is dealing with the manufacture of cement. Ext.P4 would disclose that there are four attached workers in the establishment. The contention of the petitioner is that the factory is fully mechanized from the loading of the raw materials to the production and ejection of the packaged product to the lorry through the conveyor belt. This contention is not disputed. All that is stated in the counter filed by the Board is that prior to loading the materials into the machine and for the stacking of the sacks that are pushed out through the conveyor belt, the services of the headload workers would be required. The contention of the petitioner is that no headload work is involved, and the minimal work that requires manual labor, including stacking at times, can be done by the attached workers. 9. The question is whether the Manufacturing Enterprise of the petitioner would come within the ambit of the term ‘establishment’ as defined under Section 2(j) of the Act. The term ‘establishment’ has been defined thus: 2(j) "establishment" means an establishment specified in the ``` WP(C)NO.2467OF2024 ``` ``` 8 ``` ## Schedule and includes the precincts thereof." ## 10. The Schedule of the Act reads as follows: - "1. Iron and Steel markets or shops. 2. Cloth and cotton markets or shops, 3. Grocery markets or shops. 4. Railway yards and goods sheds. 5. Establishments employing workers for loading or unloading of goods and other operations incidental and connected thereto. 6. Vegetable markets (including onions and potatoes markets). 7. Establishments employing workers for loading or unloading of goods and other operations incidental and connected thereto. 8. Bus stands, Boat jetties, landing places of country crafts. 9. Forest supply and sale coupes, timber, and firewood depots. 10. Quarries. 11. Markets (including fish and meat markets) and factories employing workers, which are not covered by any other entries in this Schedule. 12. Rubber, Tea, Coffee or Cardamom Plantations where workers are employed or engaged for loading or unloading timber or wooden logs in or from or to vehicle, trolly or cart. 13. Establishments employing or engaging workers for loading or unloading Liquefied Petroleum Gas cylinders in or from, or to a vehicle. ``` WP(C)NO.2467OF2024 ``` ``` 9 ``` 11. A Manufacturing Enterprise engaged in the manufacture of cement, which does not fall within the ambit of the term ‘Factory’ as defined under the Factories Act, 1948, has not been included in the Schedule. The contention of the respondent Board is that the petitioner would fall into Category 5 which deals with establishments employing workers for loading or unloading of goods and other operations incidental and connected thereto. The question of whether workers/employees in such establishments, who are doing work of loading and unloading along with other duties could be treated as headload workers was considered by a full Bench of this Court in **Raghavan** (supra). It was held in paragraph 21 as under: "21. Yet another point raised before us was the case of workers employed in the establishments, who are doing the work of loading and un loading along with other duties. Learned counsel for the petitioners would contend that in such circumstances, the workers cannot be treated as head load workers coming under the definition of that term under the Act. We do not think that this is an issue where an answer in general can be given. It will depend on the facts of each case. If the worker is doing loading and unloading work regularly in the establishment, he cannot be taken out of the purview of the Act only for the reason that he is discharging some other duties also. On the other hand, if he is ``` WP(C)NO.2467OF2024 ``` ``` 10 ``` principally employed to carry on the work other than loading and unloading and if occasionally he does the work of loading and unloading, it may not be possible to treat him as a head load worker coming within the definition. But, as mentioned earlier, it will depend on the facts of each case." 12. The principles laid above were taken note of by a larger bench of this Court in **Theresa** (supra), and in paragraph Nos. 29 and 30, it was held as under: 29. We thus are of considered opinion that item No. 5 of the Schedule is to be interpreted to be an establishment that 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 ``` WP(C)NO.2467OF2024 ``` ``` 11 ``` 13. On a careful evaluation of the manufacturing operations conducted by the petitioner, which predominantly utilizes automated machinery throughout its entire process, it becomes unequivocally clear that the role of headload work within the manufacturing enterprise is non-existent. The tasks performed by the helpers affiliated with the enterprise are merely incidental to its core operations. From this perspective, it is evident that the statutory provisions of the 1978 Act, alongside its ancillary Rules and Scheme, are inapplicable to such employees. Consequently, it follows that the employer is under no obligation whatsoever to hire a headload worker—let alone one registered with the 3rd respondent Union—for the execution of incidental stacking tasks within the Manufacturing Enterprise. Moreover, it is untenable for the respondent parties to assert any presumed entitlement to deploy their labor for stacking activities within the petitioner's facility. 14. Resultantly, this writ petition is disposed of as follows: a) I hold that the activity of stacking within the petitioner's ``` WP(C)NO.2467OF2024 ``` ``` 12 ``` Manufacturing Enterprise is strictly ancillary or incidental to its predominant work, namely, the automated manufacturing of Cement. - b) The attached workers of the petitioner are entitled to perform necessary stacking operations ancillary to their main duties as helpers. Engaging in such incidental stacking tasks does not qualify these individuals as Headload workers. - c) Consequently, respondents 2 and 3 are not entitled to demand that their workers shall be engaged for incidental stacking tasks within the Enterprise. - d) If any interference is caused, hindering the smooth operation of the Manufacturing Enterprise, the 1st respondent shall provide adequate protection to the petitioner, its workforce, and the vehicles engaged in the transportation of goods. Sd/- sru ## **RAJA VIJAYARAGHAVAN V JUDGE** ``` WP(C)NO.2467OF2024 ``` ``` 13 ``` ## **`APPENDIX OF WP(C) 2467/2024`** ``` PETITIONER’SEXHIBITS Exhibit-P1ATRUECOPYOFTHEACKNOWLEDGEMENTCERTIFICATE DATED23.12.2021ISSUEDBYTHEDEPARTMENTOF INDUSTRIESANDCOMMERCE,GOVERNMENTOFKERALA. Exhibit-P2ATRUECOPYOFTHECOMPLAINTDATED16.01.2024 SUBMITTEDBYTHEGENERALMANAGEROFTHE ESTABLISHMENTBEFORETHE1STRESPONDENT. Exhibit-P3THETRUEPHOTOGRAPHSOFTHEMECHANICALFACILITY INTHEPETITIONERSFACTORY. Exhibit-P4ATRUECOPYOFTHERELEVANTPAGEOFTHEMUSTER ROLLOFTHEESTABLISHMENT. ```