Humayoon & Associates v. District Labour Officer, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 11[TH] DAY OF JULY 2022 / 20TH ASHADHA, 1944 WP(C) NO. 18894 OF 2022** ## **PETITIONER/S:** HUMAYOON & ASSOCIATES, REP. BY ITS MANAGER KALLIYATH BUILDING, NEAR PATSPIN, PARA ROAD KANJIKODE, PALAKKAD DISTRICT, PIN - 678 621. BY ADVS. RAJESH SIVARAMANKUTTY K.V.ANTONY VIJINA K. ARUL MURALIDHARAN ## **RESPONDENT/S:** 1 THE DISTRICT LABOUR OFFICER PALAKKAD, (APPELLATE AUTHORITY UNDER RULE 26 C OF THE KERALA HEADLOAD WORKERS RULES), OFFICE OF THE DISTRICT LABOUR OFFICER, CIVIL STATION, PALAKKAD- 678 001. 2 THE ASSISTANT LABOUR OFFICER, 3RD CIRCLE, CIVIL STATION BUILDING, PALAKKAD- 678 001. 3 THE CHAIRPERSON, KERALA HEAD LOAD WORKERS WELFARE BOARD, PALAKKAD DISTRICT COMMITTEE OFFICE, 1ST FLOOR, M.A. COMPLEX, T.B ROAD, PALAKKAD - 678 001. 4 THE PALAKKAD DISTRICT CHUMATTU MAZDOOR SANGHAM (BMS) REP. BY GENERAL SECRETARY, HARIKKARA STREET, PALAKKAD, PIN - 678 001. 5 THE INDUSTRIAL AREA HEADLOAD AND GENERAL WORKERS CONGRESS (INTUC) REP. BY M. SUDHAKARAN, AGE AND FATHER'S NAME NOT KNOWN, ATTAPPALLAM VEEDU, PAMBAMPALLAM, KANJIKODE, PALAKKAD, PIN - 678 621. BY ADVS. THOMAS ABRAHAM BINOY VASUDEVAN ## **OTHER PRESENT:** SR.GP V.K.SUNIL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 18894 OF 2022** **2** ## **JUDGMENT** Petitioner is a firm represented by the Manager conducting business in dealership of TMT steel bars and is covered in a scheme of area promulgated under the Kerala Head load Workers Act ie., Pool No.16. The aforementioned business activity is being carried on since 2013 and all the materials loaded and unloaded from trucks are undertaken in time bound manner. It had taken 14 employees for doing the aforementioned work and had attached the aforementioned workers as per the provisions of Rule 26A of the Kerala Headload Workers Rules. This process had never taken the assistance of the pool workers. Respondent No.2, Assistant Labour Commissioner on receipt of the application, conducted a detailed enquiry in respect of the workers employed by the petitioner and passed an order under Rule 26A on 9.11.2021 whereby identity cards to 14 workers was issued, Ext.P1. 2. Learned counsel appearing on behalf of the petitioner submitted that the employer was flabbergasted to receive a notice from the appellate authority in respect of an appeal preferred by the Union against the aforementioned order and the main contention of **WP(C) NO. 18894 OF 2022** **3** the Union was that it would truncate their income and thus would be taking away their livelihood as prescribed under Article 21 of the Constitution of India. 3. The aforementioned appeal was contested by the petitioner but the appellate authority for the reasons best known has set aside the order of the Assistant Labour Commissioner dated 9.11.2021 and the sole ground for setting aside the order is of reduction of the income of the members of the Union. In support of the contention relied upon the judgment of this Court _**Brijesh John and Ors v. Assistant Labour Officer and Ors. (2022 1 KHC 58)**_ . 4. On the other hand, learned counsel for the respondent supported the order and submitted that under the garb of registration of employees, the establishment is replacing the employees without giving the details of the same and also it would affect the business of the income of the members. 5. I have heard the learned counsel for the parties, appraised the paper book and of the view that the impugned order Ext.P5 dated 20.4.2022 of the first respondent, District Labour Officer entertaining the appeal under Section 26C of the Kerala **WP(C) NO. 18894 OF 2022** **4** Headload Workers Rules is wholly erroneous and arbitrary. On perusal of the aforementioned order, it reveals that the Union had preferred an appeal against the order of the Assistant Labour Officer whereby the workers carrying on the special and particular activity of loading and unloading of the steel bars were registered and the registration of the workers had been cancelled purely on the ground that of identity as well as curtailment of their income. The said reasoning assigned by the appellate authority is wholly against the dictum of this Court in _**Brijesh John's**_ case wherein paragraph 6 to 13 held as under: “6. This Court has already held several decisions that the employer has right get his employees registered headload workers under 26A Rules. The decisions Rajeev District Labour Officer (2010 (4) 783) as well as in Manzoor v. District Labour 554) relevant the above context. was held the aforecited decisions while the application registration headload workers under Rule 26A the Rules, the lookout is not whether the applicant a headload worker or prior such registration, but whether employer is willing to engage the applicant a headload It was further held that there no requirement under law, that the applicant must have been working the establishment headload worker for becoming eligible for registration. The fact that the application submitted the workers themselves the willingness of workers to work as headload workers. nature of work indulged the applicants, prior the application, has significance as the applicants could have worked headload workers do headload work in scheme covered area, without obtaining registration. decision the Division Bench in Gangadharan C.P. Another v. Abdul Nasir Others [2016 (5) KHC 238] also relevant. 7. In another decision in Prasanna Kumar V. District Labour Officer (W.P.(C)No.6287 of 2021), it was observed by this Court as **WP(C) NO. 18894 OF 2022** **5** ## follows: "In this context, it may be worthwhile to remind ourselves that every person has a fundamental right under Article 19(1)(g) to carry on any occupation and the same can be subjected only to reasonable restrictions as provided for under Article 19(6). The work of loading and unloading is not a work that requires any specialised experience or technical or educational qualifications. Any person who is willing to do loading and unloading must have the freedom to do the said work unless it is curtailed by a reasonable restriction. The restriction that is introduced through the Act for doing headload work, in a scheme covered area, is the requirement of registration as headload worker. If the restriction of registration curtails the fundamental right of every individual to do headload work and the said restriction has to be constitutionally valid, without falling foul of Article 19(1)(g) and Article 14, then that restriction must be reasonable. If the restriction is not reasonable, it will create an unreasonable classification resulting in discrimination between those left out of the group and those included in the group of headload workers. Discrimination being the antithesis of equality, the whole Act itself may not stand the test of constitutionality. To avoid such a situation, the provisions of the Act relating to registration have been read down to mean willingness to do headload work with sufficient physique and employer's consent is sufficient to grant registration. 8. The aforesaid decisions clearly declared the right of an employee, attached to an establishment to obtain registration as a headload worker under the Act and its Rules, even in scheme covered areas. The Full Bench decision in Raghavan v. Superintendent of Police (1998 (2) klt 732), had held that all headload workers whether permanently employed in an establishment or not are required to get registration under rule 26A of the Rules. 9. The decision of the Full Bench in Sureshkumar R. and Others v. District Labour Officer, Tvm and Others (2021 (2) KHC 215), was considering the question of whether the existing cardholders have a right of appeal against the grant of fresh registration. The said **WP(C) NO. 18894 OF 2022** **6** decision does not lay down a proposition that in a scheme covered area a permanent worker attached to an establishment cannot obtain registration under Rule 26A of the Rules. On the other hand, the decision in Raghavan's Case indicates that there is no restriction to obtain such registration. Thus the decision in Sureshkumar has no applicability to the facts of the present case. 10. When the employees of the fifth petitioner have expressed their inclination to work as headload workers and even applied for registration, there is no legal justification, as has occurred in the present case, to deny registration to such employees, as headload workers under the Act and Rules. The reasons stated by the Registering Authority, as well as the Appellate Authority that registration to petitioners 1 to 4 will affect the livelihood of others is not a valid reason in the eyes of law. The reduction of income or job opportunities for existing headload workers is not at all a ground under law for denying registration to workers who are willing to do loading and unloading works. 11. As rightly contended by the learned counsel for the petitioners, the absence of certification by the Assistant Labour Officer on the service records was never a ground raised before the registering authority nor is there any legal basis for such a certification under the Kerala Headload Workers Act, 1978. Certification of the service registers is not a condition precedent for grant of registration under Rule 26A of the Rules. Further, the reasoning that grant of registration to the employees of the fifth petitioner will affect the income of the Board is too odious to be accepted by a court of law. 12. In view of the above considerations, this Court is of the opinion that the orders issued by the registering authority as well as the Appellate Authority, copies of which are produced as Ext.P6 and Ext.P12, are perverse and are hence set aside. It is declared that the employees of the fifth petitioner, who had applied for registration as headload workers, are entitled to obtain registration as headload workers, attached to the establishment of the fifth petitioner. 13. Accordingly, there will be a direction to the first respondent to register petitioners 1 to 4 as headload workers attached to the fifth petitioner establishment and issue necessary identity cards as contemplated under Rule 26A of the Kerala Headload Workers **WP(C) NO. 18894 OF 2022** **7** Rules, 1981, in a time-bound manner, at any rate, within a period of one month from the date of receipt of a copy of this judgment.' In view of the fact that the matter is being covered, impugned order of appellate authority Ext.P5 dated 20.4.2022 is quashed. Ext.P1 order of the Assistant Labour Officer is restored. Writ petition stands allowed. sab Sd/- **AMIT RAWAL JUDGE** **WP(C) NO. 18894 OF 2022** **8** ## **APPENDIX OF WP(C) 18894/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER NO. H.L 54/2021 DATED 9-11-2021. TRUE TRANSLATION OF EXHIBIT -1. Exhibit P2 TRUE COPY OF THE PETITION DATED 18-11-2021 SUBMITTED BY 4TH RESPONDENT BEFORE 1ST RESPONDENT. TRUE TRANSLATION OF EXHIBIT P- 2. Exhibit P3 TRUE COPY OF THE NOTICE OF HEARING DATED 18-12-2021 ISSUED TO PETITIONER BY 1ST RESPONDENT. TRUE TRANSLATION OF EXHIBIT P3. Exhibit P4 TRUE COPY OF THE REPLY DATED 5-1-2022 TO EXHIBIT P-3 BY THE PETITIONER TO THE 1ST RESPONDENT. Exhibit P5 TRUE COPY OF THE ORDER DATED 20-4-2022 IN NO.C.4213/2021 PASSED BY THE 1ST RESPONDENT