Jerin T. Alias and RSAheed K.M. v. Kerala Head Load Workers Welfare Board and Others

## **C.R.** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **WEDNESDAY,THE 06TH DAY OF MARCH 2019 / 15TH PHALGUNA, 1940** ## **WP(C).No. 17640 of 2018** ## **PETITIONERS:** **1 JERIN.T.ALIAS S/O. T.V. ALIAS, AGED 39 YEARS, POOL LEADER, POOL NO. 17, THERULIL HOUSE, PAINGARAPILLI P.O., THURUTIKKARA, MULANTHURUTHI, ERNAKULAM DISTRICT, PIN - 682 314. 2 RSAHEED K.M. POOL LEADER, POOL NO. 27, KUNNAPALLIMARIYIL KAROTE, MARITHAZHAM P.O., KANJIRAMATTOM, ERNAKULAM DISTRICT.** **BY ADVS. SRI.C.S.AJITH PRAKASH SRI.A.TJOSE SRI.BIJITH S.KHAN SRI.PAUL C THOMAS SRI.T.K.DEVARAJAN SRI.UNNI NAIR** ## **RESPONDENTS:** |**1**|**THE CHIEF EXECUTIVE OFFICER**| |---|---| ||**KERALA HEAD LOAD WORKERS WELFARE BOARD, S.R.M. ROAD,**| ||**ERNAKULAM, KOCHI - 682 018.**| |**2**|**THE CHAIRMAN**| ||**KERALA HEAD LOAD WORKERS WELFARE BOARD, ERNAKULAM**| ||**DISTRICT COMMITTEE, KUMMENCHERRY BUILDING, T.D.ROAD,**| ||**ERNAKULAM, KOCHI - 682 035.**| |**3**|**THE CONVENOR**| ||**MULANTHURUTHI SUB OFFICE, KERALA HEAD LOAD WORKERS**| ||**WELFARE BOARD, 1ST FLOOR, SERVICE CO-OPERATIVE BANK**| ||**NO. 23, PALLITHAZHAM, MULANTHURUTHI - 682 314.**| |**4**|**THE CONVENOR**| ||**THRIPUNITHURA SUB COMMITTEE, WHITE SHOP BUILDING,**| ||**KERALA HEAD LOAD WORKERS WELFARE BOARD, HILL PALACE**| ||**ROAD, MARKET JUNCTION, THRIPUNITHURA - 682 301.**| WPC No.17640 of 2018 2 **5** **C.P. SAJU S/O. PATHROSE, POOL LEADER, POOL NO. 18, CHURAKUZHI HOUSE, EDAKKATTUVAYAL P.O., ARAKKUNNAM, PIN - 682 028.** **BY ADV. SRI.V.P.PRASAD** ## **OTHER PRESENT:** ## **SC SRI. S. KRISHNAMOORTHY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC No.17640 of 2018 3 ## JUDGMENT Introduction: Three pools of headload workers have been working in proximity. Two have made a common cause; the other cries foul. It complains of shrunk area of work and diminished returns. Authorities, on complaint, look into it. They propose to redeem the situation. But the other two pools take the issue to court. After a labyrinth of litigation, a competent authority rules in the third pool’s favour. Again, the other two pools question it, now, before this Court. 2. The questions are: Does the authority’s latest decision contradict the earlier decisions of other authorities in the administrative echelons? And have those earlier decisions stand judicially affirmed by this Court earlier? Facts: 3. The petitioners, as the leaders, represent Pool Nos. 17 and 27. Both the pools of headload workers work within the jurisdiction of Mulanthuruthy sub-office of the Ernakulam District Committee. The fifth respondent, on the other hand, represents Pool No.18 in the same WPC No.17640 of 2018 4 locality. 4. In 2008, Pool No.18 complained that in the area allotted to it, there had been a shortage of work. As the petitioners claim, that resulted in the Ext.P3 report submitted by the Sub-Committee. It suggested a realignment of the area. Aggrieved, Pool Nos. 17 and 27 challenged the Ext.P3 order. Then, through the Ext.P4 judgment, this Court directed the Chief Executive Officer, Kerala Headload Workers' Welfare Board (“the Board”) to re-examine the matter. Thereafter, the CEO passed the Ext.P5 order, upholding the Ext.P3. Again, the CEO's decision was challenged in WP(C) No.20828 of 2018. 5. A learned Single Judge considered the issue and declared that the dispute Pool No.18 raised falls under Section 2(h) of the Kerala Head Load Workers Act 1978 (“the Act”). So, to have it resolved, the parties could invoke Section 21 of the Act. Thus, the matter was referred to the District Labour Officer (“DLO”). 6. The DLO, in turn, passed the Ext.P8 order. Then, Pool No.18 filed an appeal under Section 21(6) of the Act. The appellate authority through an elaborate Ext.P9 order affirmed the Ext.P8 order. Further aggrieved, Pool No.18 challenged the DLO's order in WP(C) No.2660 of WPC No.17640 of 2018 5 2012. Through the Ext.P10 judgment, this Court permitted the Pool No.18 to seek remedy under Section 18(8)(b) of the Act. Then questioning the Ext.P10 judgment, Pools 17 and 27 have filed an intraCourt appeal. 7. Through the Ext.P11 judgment, a Division Bench of this Court in W.A. No.645 of 2017 has observed that Ext.P10 judgment has granted no relief to Pool No.18; instead, it only suggested the remedy available to the Pool 18. Thus, refusing to interfere, it has closed the writ appeal. 8. In the light of the above judicial proceedings, now Pools 17 and 27 maintain that the Sub-Committee referred the matter to the District Committee, as is evident from Exts.P15 and 16. It is, they allege, despite no request from Pool No.18. Thereafter, the District Committee is said to have ruled in favour of Pool 18 because its Headload workers have allegiance to the ruling party. Assailing the Committee's order, Pools 17 and 27 filed WP(C) No.33796 of 2017. They asserted that they had not been heard before the District Committee could take a decision, though this Court through Ext.P11 judgment mandated otherwise. 9. At any rate, the Court ordered the District Committee to communicate its decision to the parties concerned in one week. And it WPC No.17640 of 2018 6 also left it open for any affected party to agitate the issue before the appropriate authority. When the decision was communicated, Pools 17 and 27 filed WP(C) No.35879 of 2017, which resulted in Ext.P24 judgment. Before this Court the learned Standing Counsel agreed that the Board would not enforce the District Committee's decision; instead, it would hear all the parties concerned and pass fresh orders. 10. After the Ext.P24 judgment, the Board tried to bring about conciliation among the disputing pools: Pool 17 and 27 on one side and Pool 18 on the other. But numerous rounds of negotiations yielded no result. In this context, the petitioners further allege that the Chairman of the District Committee with his companion officials visited the disputed area and assessed the ground reality. Then he suggested a solution without much affecting the area of operation as assigned to the respective pools. But the District Committee, allegedly comprising majority leaders from the ruling party, compelled the Chairman to take a different view to help Pool No.18. 11. Then, the Chairman of the State Board intervened under Section 18(a)(b) and arranged a meeting as per Ext.P29. Eventually, the second respondent Chairman issued the Ext.P37 proceedings realigning WPC No.17640 of 2018 7 the area of the respective pools. Aggrieved, the members of the pools 17 and 27 have filed this writ petition. Submissions: Petitioners’: 12. Sri Ajith Prakash, the learned counsel for the petitioners, has strenuously contended that the Ext.P37 order has no statutory basis. According to him, it is a product of political pressure and machinations. He has persistently submitted that the issue attained finality long back because of a series of judgments from this Court. Yet, at every given opportunity, Pool 18 and those partial to it have been trying all their best to enforce the Ext.P3, which has no legal basis. 13. Sri Prakash has taken me through all the proceedings and the judgments of this Court to underline that the Sub-Committee’s initial illegal efforts bore no fruit because of the petitioners’ vigilant attitude. Only then was the Sub-Committee compelled to refer the matter to the District Committee. According to him, the Sub-Committee is a nonstatutory body having no power to adjudicate or decide on the issues as now presented in this writ petition. He has also submitted that the Ext.P8 proceedings, dated 11.07.2011, considered all the issues. WPC No.17640 of 2018 8 14. When the Ext.P8 was appealed against, this Court, Sri Prakash asserts, has upheld it. He has also drawn my attention to various pieces of information the petitioners have secured under RTI to demonstrate how the authorities have tried to favour Pool No.18. According to him, Pool No.18 has never requested the Board at any stage to reconsider the issue, much less to realign the areas. According to him, an issue, after attaining finality, cannot be reopened. 15. Sri Prakash has also submitted that the pool leaders have done their own investigation about the workload available for the Pool No.18 in the area assigned to them. According to him, many business establishments have not registered themselves under the Act. Thus, they remain outside the Board supervision. Yet the headload workers of Pool No.18 have been working for those establishments and collecting their remuneration through the Board. Pool 18 has sufficient income. In the end, Sri Prakash urges this Court to set aside the Ext.P37 and restore status quo ante—whatever situation had been prevailing before the Ext.P37. To support his contentions, Sri Prakash has relied on Swathanthra Thozhilali Union v. Kerala Headload Workers Welfare.[1] 16. Sri V.P. Prasad, the learned counsel for the 5[th] respondent, that > 1 2011 (3) KHC 556 WPC No.17640 of 2018 9 is Pool No.18, has, to begin with, disputed the petitioners’ assertion that the issue has attained finality. According to him, this Court, in fact, allowed Pool No.18 to raise the issue before an appropriate authority, as seen from Ext.P10 judgment. Then it is the petitioners that challenged that judgment in WA No.645 of 2018. But they remained unsuccessful. According to him, only in compliance with the Exts.P10 and P11 judgments, Pool No. 18 raised the issue: equitable distribution of workload or area among the three pools. 17. Then, Sri Prasad has proposed, what could be termed, a swapping arrangement: if the petitioner-pools feel that the work or area distribution is equitable and that Pool No.18 is, in fact, getting more income, that pool is willing to swap its work or area. In the alternative, Pool No.18, he further asserts, is willing to share its income with the other two pools. So all the headload workers despite the pool they belong to will have equal wages earned. 18. According to Sri Prasad, the petitioners tried to influence the Sub-Committee. Because it comprised more members owing allegiance to political parties supporting Pools 17 and 27. Only when Pool No.18 protested, did the District Committee take up the matter. According to WPC No.17640 of 2018 10 him, the District Committee provided every opportunity to all persons concerned, including Pools 17 and 27, and rendered the Ext.P37 order. 19. Then Sri Prasad addressed the question whether Pool No.18 ever requested the authorities to reconsider the issue in terms of Exts.P10 and P11 judgments. In that context, the learned counsel asserts that Pool No.18 did request. Taking me through the facts, he submits that when the litigation began, Pool 18 had about fifteen members. Now it has only eight members left. As that Pool has little work available in the area allotted to it, most headload workers left the pool, seeking employment at other places. Though not borne by the record, he has submitted that the very leader of the pool could not secure enough work; he is running an autorickshaw. The Board’s: 20. Sri Krishnamoorthy, the learned Standing Counsel for the Board, has submitted that the Board has taken no sectarian stand to favour one pool or another. He has also vigorously denied any allegation that its members, even those in the District Committee, have ever come under any political pressure or influence. He has submitted that the Board has endeavored in all earnest to ensure that each pool gets enough WPC No.17640 of 2018 11 work and the area stands allotted. The Standing Counsel has explicitly submitted that the petitioners could not harp on the previous litigation for the Board acted only in terms of Exts.P10 and P11 judgments. He does assert that there has been ample record to show that the fifth respondent requested the Board to act. 21. At any rate, Sri Krishnamoorthy submits that Exts.P37 is a decision taken after due deliberations and with the participation of every stakeholder including those from Pools 17 and 27. In his view, that order is unassailable as it suffers no legal lacuna. 22. Heard Sri C.S.Ajith Prakash, the learned counsel for the petitioners, Sri Krishnamoorthy, the learned Standing Counsel for the Board, and Sri V.P.Prasad, the learned counsel for the 5[th] respondent, besides perusing the record. ## Discussion: ## The Baggage of Litigation: 23. This case, as I see, presents a labyrinth of litigation; out of that labyrinth came the Exts.P4, P7, P10, P11, P20, and P24 judgments. The same petitioners, as before us, filed WP (C) No.11246 of 2008 and invited the Ext.P4 judgment. They have complained about “the transfer of WPC No.17640 of 2018 12 certain areas within their jurisdiction to the jurisdiction of other pools.” The Court directed the Kerala Headload Workers Welfare Board to “have a second look into the matter” based on the petitioners’ objections. 24. The judgment in WP (C) No.11246 of 2008 has led to further proceedings about the demarcation or allotment of areas to different pools. Again, the same pool leaders—Pools 17 and 27—filed WP (C) No.20828 of 2008. They questioned the assignment of certain areas to Pool No.18. The Court has refused to interfere, but allowed the petitioners to go to the Assistant Labour Officer, who was asked to conciliate. This has led to the Ext.P8 proceedings, on which the petitioners now heavily rely on. ## 25. In the Ext.P8 Order, the District Labour Officer has held: “As per the Headload Workers Act, at the time of registration the Assistant Labour Officer will grant registration for working in specified location only. . . the Welfare board will have to give job as per the pool of the concerned location only. The Welfare Board had already started giving jobs after dividing the pool in accordance with the registration granted by the Assistant Labour Officer in the area from 1.12.1997 onwards. But the welfare board does not have the power to change the work area registered and granted by the Assistant Labour Officer only on the ground (?) that in the particular pool there is shortage of work. The Welfare Board has the power only to redeploy the workers as per their job and wages. The decision of the Welfare Board can be seen only as an act to widen the work area of Pool 18 and accordingly to increase the number of workers in the said pool. The 19 No: of new applications received for registration of headload workers to Pool 18 during the period 2010 can be inferred in this regard. WPC No.17640 of 2018 13 In this circumstance the following order is passed using the inherent power as per Section 21(1) of the Headload Workers Act, 1978. ## Order An Order is hereby passed rejecting the Order passed by the Headload Workers Welfare Board Chairman by which it separated Pool No.17 and 27, and merged it to pool No.18 stating that there is less work in Pool No.18”. 26. Against the Ext.P8 order, Pool No.18 field an appeal under Section 21(1) of the Act, before the Regional Labour Commissioner. In the appeal, the Ext.P8 was upheld. So it filed WP (C) No.2660 of 2012 before this Court. Then, through the Ext.P10 judgment, a learned Single Judge has held that the petitioner’s remedy, in fact, is to move such authority as contemplated under Section 18 of the Act. 27. Aggrieved, Pools 17 and 27 filed WA No.645 of 2017. The Division Bench has held that the Committee shall consider the issue and take a decision, in accordance with law, after hearing all interested parties. Before we consider what happened after the Division Bench’s judgment, let us examine the statutory scheme. ## Statutory Scheme: ## (a) The Headload Workers Act: 28. The Kerala Headload Workers Act 1978 is an Act, as the WPC No.17640 of 2018 14 preamble puts it, to regulate the employment of headload workers in the State of Kerala. It provides for the headload workers welfare, for settling the disputes of their employment or non-employment and for other connected matters. Section 2 is the lexical provision; it defines various terms and expressions. Chapter II comprises Section 3 to 5 and provides for the appointment of Conciliation Officers, Appellate Authorities, and Inspectors. 29. Chapter III of the Act comprising Section 6 to 12 deals with the working hours and “limitations of employment and wages.” Section 11 enforces wage payments. Wages denied or paid less, a headload worker or an official of his union may apply to the Conciliation Officer. If that officer’s orders remain unimplemented, she will report to the Collector, who enforces the wage payment as an arrear of public revenue due on land. Section 12 provides for an appeal against an order under Section 11. 30. Chapter IV deals with “Schemes” and contains only one section: Section 13. The Government may, by a Gazette notification formulate a scheme or schemes “for any employment or group of employments in one or more area or areas” and, by similar notification, add to, amend, or vary those schemes. Clause (f) of subsection (2) provides for “pooling of WPC No.17640 of 2018 15 headload workers who are not employed under any employer or contractor.” If any question arises whether any scheme applies to any class of headload workers, the matter will be referred to the Government, and its decision is final. 31. Chapter V, comprising Sections 14 to 17, delineate on the Government’s constituting the Board. The Board, thus constituted, exercises its powers and performs its duties to enforce the Schemes. The Board is bound by the Government directions given from time to time. Under Section 16, the Government may appoint officers to assist the Board. 32. Chapter VI, comprising Sections 18 to 20, deals with “Committees.” The Committees are the second-tier administrative set-up, to assist the Board. A committee will comprise Government nominated members, not exceeding fifteen. Of them, two-thirds must be persons representing the employers and the headload workers. And the members representing the employers and the headload workers ought to be equal in number. The Committee so appointed will discharge these functions: - (a) to pool the headload workers not employed under any employer or contractor; WPC No.17640 of 2018 16 - (b) to arrange and regulate employment to such headload workers and to pay them wages; - (c) to take disciplinary action against them wherever necessary; - (d) to do all such acts as are necessary for the implementation of this Act and the scheme. 33. As a third-tier in the administrative hierarchy, the Government under Section 19 may appoint officers to assist the Committee. 34. Then comes Chapter VII, comprising Sections 21 to 23. This Chapter deals with dispute resolution. And of all provisions in this Chapter, Section 21, dealing with dispute resolution, assumes importance. So it pays to quote that provision for closer scrutiny. 21. Settlement of disputes .-(1) Where a dispute which is connected with the employment or non-employment or the terms of employment or with the conditions of work, of any headload worker exists or is apprehended, the Assistant Labour Officer, having jurisdiction may hold conciliation conferences for the purpose of bringing about a settlement of the dispute and, if such settlement is not arrived at, send a report of the dispute to the Conciliation Officer. - (2) On receipt of a report under subsection (1), the Conciliation Officer may hold conciliation proceedings and shall, for the purpose of bringing about a settlement of the dispute, without delay investigate the same and all matters affecting the merits and the right settlement thereof and may do all such things as he things fit for the purpose of promoting a fair and amicable settlement of the dispute. (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of conciliation proceedings the Conciliation Officer shall send a report thereof to the appellate authority. - (4) If a settlement of the dispute or any of the matters in dispute is not arrived at, the Conciliation Officer shall take a decision on the dispute or, as the case may be, on the matters in respect of which no settlement WPC No.17640 of 2018 17 has been arrived at and shall send a report of the dispute with a copy of his decision to the appellate authority. (5) The decision of the Conciliation Officer under subsection (4) shall, subject to the decision of the appellate authority under subsection (7), be binding on all parties to the dispute. - (6) Any person aggrieved by any decision of the conciliation Officer under subsection (4) may, within such time as may be prescribed, appeal to the appellate authority against such decision. (7) On receipt of an appeal under subsection (6), the appellate authority shall make such inquiries as it deems fit and after giving the parties an opportunity of being heard decide the appeal within a period of two week from the date of receipt of the appeal. (8) Notwithstanding anything contained in any law for the time being in force, the appellate authority shall not stay the operation of the decision of the Conciliation Officer pending its decision on the appeal except for good and sufficient reasons to be recorded in writing. 35. If a dispute arises or is likely to arise about the employment, non-employment, or about the terms of employment of any headload worker, the Assistant Labour Officer will try to conciliate the dispute. No conciliation achieved, she will report about it to the Conciliation Officer. Then, the Conciliation Officer will also try to conciliate the dispute. If she fails or succeeds in settling the dispute, she will send a report to the appellate authority. 36. If the Conciliation Officer’s decision affects any person, he may appeal to the appellate authority. Then, the appellate authority will decide the appeal within two weeks. Of course, the appellate authority, for “good and sufficient” reason, may stay the Conciliation Officer’s decision, pending her decision in the appeal. WPC No.17640 of 2018 18 37. On the other hand, if the Government desires to intervene, it may dispense with the procedural requirement under Section 21 and refer the dispute under Section 22 straight away to the appellate authority. Or it may decide on its own. Chapter VIII to XI of the Act, however, may not be necessary for our purpose. ## (b) Kerala Headload Workers Rules, 1981: 38. Of these Rules, a few notable ones we may consider. Rule 13 delineates the Board’s powers and functions, and Rule 14 allows the Board to supervise the Committees. On the parallel lines, Rule 24 elaborates on a Committee’s “functions and procedure.” Rule 25A provides for an appeal against the Conciliation Officer’s decision under Section 21 of the Act. Under Chapter IV of the Rules comes Rule 26A, the talismanic rule that deals with the registration of headload workers. 39. Any headload worker may apply for registration to the Registering Authority concerned, with additional copies to all the employers or contractors from whom he claims work. The application received, the Registering Authority will issue a notice to the employers or contractors before her considering the application. If the application relates to a scheme covered area, the notice must be given to the WPC No.17640 of 2018 19 Chairman of the Welfare Board’s Local Committee. The Registering Authority thus invites objections. 40. The objections, if any, considered and objectors heard, the Registering Authority will register the applicant as a headload worker. And she will communicate that order of registration to the applicantheadload worker, in two weeks, besides issuing an identity card to him. On the contrary, the application rejected, the Registering Authority will communicate that fact to the applicant with reasons set out. 41. Under sub rule (4) of Rule 26A, the Deputy Labour Officer, the District Labour Officer concerned or any other competent authority, can cancel the headload worker’s registration. For this purpose, that authority must satisfy herself “on a report from Registering Authority that the Registration has been obtained by fraud or mistake.” Of course, this cancellation has, as a precondition, certain statutory safeguards. Rule 26C provides for an appeal. (c) The Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983: 42. Para 6 of the Scheme prohibits an unregistered headload worker from working in a scheme-covered area. Unless the registered headload worker is permanently employed, he must secure further registration “in WPC No.17640 of 2018 20 the Committee under the Scheme.” And that additional registration is under Para 6A. After the registration, the headload worker gets another identity cared. Para 6B empowers the Committee operating the Scheme to replenish the workers; the replenishment depends on a worker’s “retirement, superannuation, death, disability, resignation, removal, and expansion of the Scheme.” Para 6E provides for an appeal. 43. Paragraph 7, on the other hand, lets the employers have their workmen registered. Those workmen it may have been engaging directly or through a contractor. But if the employer employs them on a “permanent and regular” basis by maintaining a register of employment, then it stands exempted from the requirement under Para 7. 44. Paragraph 8, falling under Chapter III covering the “obligation of Headload Workers and Employers” restricts the headload workers from working beyond the area the Committee has assigned to them. Besides Paragraph 6B, Paragraph 19, too, allows the Committee to determine the number of headload workers the scheme-covered area needs. If we examine the Scheme further, Paragraph 24A empowers the Chairman of the Committee to remove any headload worker for the reasons mentioned in that Paragraph. WPC No.17640 of 2018 21 45. Now we will examine the developments here in the backdrop of the statutory position as set out above. Ext.P37, the Impugned Order: 46. First, let us examine Ext.P37, the impugned order. The petitioner wants the Court to quash the Ext.P37 order, passed by the Chairman of the Ernakulam District Committee of the Board. It also wants a direction to the respondent authorities “not to alter or realign [their] area of work”, which is “in vogue for several years.” Besides that, they insist on the Court’s declaring that the respondents 1 to 4 cannot “take a decision contrary to Exts.P8 and P9 decisions,” as “confirmed by Exts.P10 and P11 judgments.” Finally, the petitioners also want the Court to declare that the Ext.P37 order falls “beyond the mandate of Section 18(8)(b) of the Headload Workers Act.” ## (a) What does Ext.P37 order mandate? 47. As seen from the order, on 17.04.2018 the District Committee met. That Committee comprised the petitioners’ representatives, too. Upon deliberations, it redrew the boundaries of the 18[th] Pool. The Committee has instructed the people concerned to implement the redrawn territorial plan, from 01.06.2018. The minutes of the Emergency WPC No.17640 of 2018 22 Meeting record that the territorial disputes occasioned because of the “[a]mbiguity regarding the boundaries of Pool No.18 and that the work and wages of Pool No.18 seem to be less.” 48. The petitioners mount their challenge against the Ext.P37 on the ground that it violates the previous Exts.P8 and P9 decisions. And those decisions stood judicially affirmed by the Exts.P10 and P11 judgments. Is is it so? We will see. ## (b) Do the Exts.P8 and P9 decisions still survive? Or (c) have the Exts.10 and P11 judgments confirmed the Exts.P8 and P9 decisions? 49. To answer these questions, we should first examine how, in the first place, the impugned Ext.P37 has come about. The Developments After the DB’s Ext.P11 Judgment: 50. Before tracing the developments after the Ext.P11 judgment, let us put in perspective, repetitive as it may sound, what happened before that. The DLO passed the Ext.P8 order. Then, Pool No.18 appealed. The appellate authority, in turn, passed the Ext.P9 order; it affirmed the Ext.P8 order. Further aggrieved, Pool No.18 filed WP(C) No.2660 of 2012. That resulted in the Ext.P10 judgment: this Court permitted Pool No.18 to seek remedy under Section 18(8)(b) of the Act. Then Pools 17 WPC No.17640 of 2018 23 and 27 questioned the Ext.P10 judgment and, thus, invited the Ext.P11 judgment. Through the Ext.P11 judgment, a Division Bench has observed that Ext.P10 judgment has granted no relief to Pool No.18; instead, it only suggested the remedy available to the Pool 18. So it refused to interfere. 51. In the light of the Ext.P10 and Ext.P11 judgments, the District Committee formed a Sub Office, in Mulanthuruthy, and transferred the matter to it. In July 2017, the Sub Office took a preliminary view that “the realignment of the area of work” is not justified. Then it referred the matter to the Statutory Committee, that is the District Committee of the Board, at Ernakulam. The District Committee made certain initial efforts to resolve the dispute but does not seem to have succeeded. 52. Later, the District Committee, on 06.10.2017, decided to implement the Ext.P6 decision. The petitioners complain that the District Committee decided without hearing them. True, the petitioners allege that the District Committee came under political pressure—of the ruling party. Aggrieved, the petitioners filed W.P(C) No.33796 of 2017. They wanted the District Committee not to implement its decision “if any taken” on 6.10.20017. WPC No.17640 of 2018 24 53. When the matter was taken up for admission, the standing counsel for the Board submitted that a copy of the decision would be served on all concerned in one week. So this Court rendered the Ext.P20 judgment. Complaining that the District Committee’s decision, dt.06.10.2007 violates the Division Bench’s judicial directive in the Ext.P11 judgment, the petitioner also filed a contempt of Court case in COC No.1866/2017. But it was closed on 10.11.2017. 54. The petitioners complained that the Committee took a decision on 6.10.2017, but did not communicate to the petitioners, despite the Court’s direction in the Ext.P20 judgment. Eventually, with the intervention of the Chairman of the District Board, the petitioners received the Ext.P23 communication, which referred to the decision, dt.06.10.2017. The petitioners, however, complained that the Ext.P23 decision is “nothing but the decision of the previous Committee.” So once again, the petitioners filed W.P(C) No.35879 of 2017. 55. As the petitioners complained that they had not been heard, the Standing Counsel for the Board seemed to have assured the Court that it would not implement the Ext.P23 decision, but would take a fresh decision “after hearing the affected parties.” Then, the Court rendered the WPC No.17640 of 2018 25 Ext.P24 judgment. Later, the Chairman visited the area to assess the workload and the area division. In the Committee’s meeting held on 07.12.2017, the petitioners seem to have asserted that they are entitled to continue with the existing area. 56. On 04.01.2018, the District Committee referred the matter to the Board’s Head Office. On transfer, it seems, the Board again remitted the matter to the District Committee. The matter thus remitted, the District Board or Committee met on 22.3.2018. Of course, about all the subsequent Board deliberations, the petitioners allege political interference and name certain union leaders and politicians. But none of them is a party to the writ petition. So I will not take—rather it is improper to take—notice of those allegations. But the petitioners allege that after the meeting presided over by the Chairman of the State Board, they were not informed of any further discussion on the subject. On 9.5.2018, however, the petitioner was informed that no decision was taken in the meeting dated 17.4.2018. Eventually, the District Committee of the Board “without conducting the further discussion with the petitioners,” finalized the minutes dated 17.4.2018 in the meeting held on 22.5.2018, as seen from Exhibit P34. WPC No.17640 of 2018 26 57. About these proceedings, the petitioners complain that the realignment of the area was on a specious plea that Pool No.18 suffered a shortage of work. Besides that, the petitioners also allege that while realigning the area, the authorities allotted a part of Pool No.27’s area to Pool No.18. And that was without even consulting the representative of the Pool No.27. Indeed, the petitioners also allege that in the area allotted to Pool No.18, many establishments have been functioning without registration. Yet the headload workers of that pool are working for those establishments and are getting paid. 58. Eventually, the authorities, according to the petitioners, issued the Ext.P37 proceedings, 25.05.2018, seeking to implement its decision, dt. 25.5.2018. The petitioners maintain that the decision is “per se illegal on multifarious grounds.” They do contend that the decision is without authority of law and against the settled legal position. The Board Chairman, they assert, exceeded his jurisdiction beyond the statute. 59. Indeed, to begin with, acting on 18[th] Pool’s compliant, the Chairman of the Headload Workers Welfare Board, it seems, took away some area from Pool No.17 and 27, and merged it with pool No.18. It was on the ground that there was less work in Pool No.18. But, as we WPC No.17640 of 2018 27 have already discussed, through the Ext.P8 order, the District Labour Officer set aside that order. Then, Pool No.18 field an appeal under Section 21(1) of the Act, before the Regional Labour Commissioner. In the appeal, the Ext.P8 was upheld. So it filed WP (C) No.2660 of 2012 before this Court. Then, through the Ext.P10 judgment, a learned Single Judge has held that the petitioner’s remedy, in fact, is to move such authority as contemplated under Section 18 of the Act. : “[N]otwithstanding the impugned orders, if the petitioner approaches the authority under the provisions of Section 18(8)(b), the authority shall consider the petitioner's request, after adverting to Ext.P13.” 60. Aggrieved, Pools 17 and 27 filed WA No.645 of 2017. The Division Bench, in the Ext.P11 judgment, has held that “if the second respondent [Pool 18] approaches the Committee as directed by the learned Single Judge, the Committee shall consider the same and take a decision in the matter, in accordance with law, after hearing all interested parties.” 61. From the above proceedings, we gather that the Court—both the learned Single Judge and the Division Bench—permitted Pool No.18 to assail the Exts.P8 & P9 orders (if we do not speak of the merger of orders) before appropriate statutory authorities under a relevant provision. WPC No.17640 of 2018 28 Therefore, because of the later developments, the petitioners cannot contend that the Exts.P8 & P9 have remained undisturbed, much less attained finality. ## Ext.P 11 Judgment v. Swathanthra Thozhilali Union: 62. Granted, in the Ext.P10 judgment, the learned Single Judge has directed Pool No.18 to approach the authority “under the provisions of Section 18(8)(b).” 63. Then, on appeal, the Division Bench, in the Ext.P11 judgment, has held that if Pool No.18 approaches the Committee, it shall consider the same and take a decision, “in accordance with law,” after hearing all interested parties. 64. In Swathanthra Thozhilali Union, the issue concerns the working hours of headload workers. In that context, a learned Single Judge has held that the Committee “cannot under the guise of exercising the power under Clause (b) of sub-section (8) of Section 18 of the Act decide a dispute between headload workers and headload workers, which is connected with the employment or non-employment or the terms of employment or the conditions of employment, of a headload worker.” The dispute as arose in Swathanthra Thozhilali Union, the learned Single WPC No.17640 of 2018 29 Judge has reckoned, can be resolved only in the manner provided in Section 21 of the Act. 65. First, the Ext.P11 judgment is inter partes; Swathanthra Thozhilali Union is a precedent. The Ext.P11 judgment comes from a Division Bench; Swathanthra Thozhilali Union from a Single Bench. I hasten to add that in the Ext.P11 judgment the question on the statutory source of the Committee’s power is sub silentio. The Ext.P10 judgment getting merged with the Division Bench’s Ext.P11 judgment, the latter has directed the Committee to decide the dispute only “in accordance with law.” 66. True, Section 18 (8) enumerates the Committee’s functions; subclause (b) provides for arranging and regulating the employment of headload workers and paying them wages. It is an enabling provision. Section 21, on the other hand, empowers the Committee and sets out the mechanism for “settlement of disputes.” 67. It is beyond the pale of any legal controversy that a misquoted provision denudes no competent authority of its power which is otherwise available. On the contrary, if an enactment provides for two methods of redressal under two provisions and those distinct redressals WPC No.17640 of 2018 30 have different consequences, then invoking one for the other may prove fatal. Here I find no such eventuality. Even the Division Bench in the Ext.P11 judgment has directed the Committee—which undoubtedly has the power—to decide the dispute in accordance with law. Period. ## (d) Should this Court interfere with the Ext.P37? 68. The Ext.P37 order cannot be termed a mere administrative order; it has, I reckon, all the trappings of a quasi-judicial order, for it determines or affects the civil rights of the headload workers. After all, we need no longer grapple with subtler aspects of classifying orders into that dichotomy of administrative and judicial. In Rajesh Kumar v. CIT[2] , the Supreme Court has held that “when civil consequences ensue, there is hardly any distinction between an administrative order and a quasijudicial order. . . . it is now well settled that a thin demarcated line between an administrative order and quasi-judicial order now stands obliterated.” 69. For the District Committee to pass the Ext.P37, I see no legal hurdle. Moreover, the legal obstacles the petitioners tried to put—that the Exts.P8 & P9 hold the field and that the Exts.P10 & P11 judgments affirm that—already stand rejected. Then, this Court in a judicial review, 2 (2007) 2 SCC 181 WPC No.17640 of 2018 31 especially in issuing a certiorari, has very limited grounds of interference: that the authority which passed the order has acted (i) without jurisdiction, or (ii) in excess of Jurisdiction, or (iii) in violation of the principles of natural justice, or (iv) in clear ignorance or disregard of the provisions of law, thus committing an error apparent on the face of the proceedings. 70. Here I see none. In fact, the Committee, representing not only the officials but also representatives of all concerned, has deliberated on the issue, exercised its jurisdiction, followed the procedure, and rendered an order—with all adjudicatory trappings. And that order calls for no interference. So I cannot but reject the petitioners’ contentions against the Ext.P37. Tailpiece: 71. Having decided the issue in dispute, I must part with the matter, but with a note of concern. I have set out above how the applications are accepted in groups, each group distinctly belonging to a trade union owing its fealty to one political party or another. The pools of headload workers are divided essentially based on political identity. Each pool comprises members from only a trade union of one political party. The WPC No.17640 of 2018 32 pools will not contain an equal number of workers, though each pool undertakes, supposedly, the same quantum of work. It, thus, leads to unequal distribution of wages among these fluctuating, ever-altering members of the pools. 72. When I asked the Government Pleader and the Standing Counsel for the Board about this politically polarized—almost, as I perceived, myopic—pooling of headload workers. They replied that this segregation prevents inter-union rivalries and avoids dissensions within the workforce. To elaborate, they have submitted that if the authorities pool rival union members together, they may lack coordination. Given the physical labour they undertake, mutual mistrust among the members may lead to accidents—even calamitous consequences. 73. The Constitution is colorblind, said Justice John Marshall Harlan, the great 19[th] Century dissenter of the US Supreme Court. In Plassey v. Ferguson, he dissented, decrying the fallacious doctrine of “separate but equal” that legitimized racial segregation. Justice Harlan memorably maintained that “[c]onstitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most WPC No.17640 of 2018 33 powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Not only the Constitution but also every piece of law that takes birth under the Constitution is colorblind. Blissfully, Indian jurisprudence, so far, has not betrayed the Plassey’s parochial, jaundiced view, as its majority asserted. That said, I must query: what about political polarization or proclivity? 74. Neither the Constitution nor the statutory law displays political preferences—not even the policies emanating from them. A constitution may have a particular political ideology permeating it; that gets reflected policy-wise. But that ideological identity does not descend into political patronage. Majoritarian assertions stop at the electoral doorstep. Not beyond. Thus, in a democracy, the rule may be by the majority, but it is not the rule for the majority. The rule, the regulation, the scheme, the policy, the protection, the benefit, the burden, and everything else apply across the board—to everyone, eligible and deserving. And that eligibility is politically neutral. 75. Here, disturbingly, as I reckon, the whole Act, the entire Scheme operates—or at least, gets implemented—on political identity. The WPC No.17640 of 2018 34 applications are accepted in groups, each group distinctly belonging to a trade union owing its loyalty to one political party or another. The pools of headload workers are divided essentially based on political identity. Each pool is homogeneous, comprising members from only a trade union of one political party. The pools will not contain an equal number of workers, though each pool undertakes the same quantum of work. It, thus, leads ~~t~~ o unequal distribution of wages among these fluctuating, ever-altering members of the pools. 76. Subjected to scrutiny, earlier too, the enactment has passed judicial muster, but seems to fall short in its execution. I have gone through the Act, the Rules, and the Scheme; none assigns any role to political parties or political identities. Thus, legislatively it suffers no lacunae. But in execution, it reveals a different picture. 77. As a case in point, let us take Pool No.18. It says it has its area truncated, its work diminished, and its ranks depleted, lacking enough income. Its very pool leader, allegedly though, has been plying an autorickshaw to augment his income. Monthly each member gets a pittance, not even a couple of thousands as wages. They asked for an increased area of work; they are willing to swap the area or share the income after WPC No.17640 of 2018 35 pooling it with that of other groups. 78. The request from Pool 18 has led to a labyrinth of litigation— many rounds of writ petitions, statutory adjudication, and administrative orders. Yet the problem persists, remains unresolved. 79. Reverting to the specious reasoning the respondents offered for pooling the workmen as per their political preferences, I must, first, observe the arrangement defies economic logic. Here the headload workers may have been working for a private establishment, but their right emanates under a statute; so they are amenable to Government control. They can thus be treated as Government employees—only in that limited context. 80. Granted, everyone has his constitutional rights protected. Even government servants do not lose their constitutional rights when they accept their positions. But their rights often yield when weighed “against the realities of the employment context,” holds the US Supreme Court in Engquist v. Oregon Dept. of Agriculture.[3] If it were otherwise—if every employment decision were to “become a constitutional matter”—“the Government could not function,” further holds the same Court in NASA v. Nelson.[4] 3 553 U. S. 591, 598 (2008) 4 562 U. S. 134, 148 (2011) WPC No.17640 of 2018 36 81. Elena Kagan J, in Janus v. American Federation of State, County, and Municipal Employees Council,[5] reminiscent of scathing Scalia, has rendered a powerful dissent. Quoting from the court’s many precedential pronouncements, she observes about [the fundamental rights] of employees: the Court first asks whether the employee has exercised his right as a citizen on a matter of public concern. If she did not—but rather spoke as an employee on a workplace matter—she has no claim for the full panoply of her rights under Article 19 (a) and (c): A public employer can curtail an employee’s speech just as a private one could. But if she did speak as a citizen on a public matter, the public employer must demonstrate “an adequate justification for treating the employee differently from any other member of the general public.” The government, that is, needs to show that legitimate workplace interests lay behind the regulation of the employee’s fundamental rights under, say, Article 19. ## Possibilities to be Explored: 82. First, neither the Act nor the Rule, not even the Scheme, sanctions this political pigeonholing: bunching headload workers as per their olitical p proclivity. Impermissible. True, practical problems persist: 5 585 U.S. ___ (2018) WPC No.17640 of 2018 37 the authorities apprehend inter-union rivalries and dissensions among the unwilling, even hostile, workmen if they are asked to work together. 83. As I gather from the statutory scheme, the Board and the Committees have plenary powers in regulating the affairs of the headload workers and in resolving their disputes. It can discipline them, too. To avoid income disparities among various pools in the same area, the authorities will examine—even experiment with—the method of clubbing headload workers pool-wise, based more on practical considerations rather than on the workmen’s proclaimed political affiliations. Trade Unions the workmen may have, and those unions may as well represent their members. But that should not stultify a welfare scheme, as the Kerala Headload Workers Act envisages, and create politically polarized fiefdoms. Food knows no politics, so should one’s rights to earn it. Conclusion: The Writ Petition is dismissed. No order on costs. **Sd/-** ## **DAMA SESHADRI NAIDU** **JUDGE** WPC No.17640 of 2018 38 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE 6A CARD ISSUED UNDER THE SCHEME, 1983 TO MR.K.V.ASOKAN, A HEADLOAD WORKER IN POOL NO. 17.** **EXHIBIT P2 A TRUE COPY OF THE 6A CARD ISSUING UNDER THE SCHEME, 1983 TO THE 2ND PETITIONER.** - **EXHIBIT P3 A TRUE COPY OF THE REPORT OF THE SUB COMMITTEE DATED 28.01.2008.** **EXHIBIT P4 A TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 11246/08 DATED 02.04.2008.** - **EXHIBIT P5 A TRUE COPY OF THE PROCEEDINGS NO. A3/6366/08 DATED 07.06.08.** **EXHIBIT P6 A TRUE COPY OF THE PROCEEDINGS NO. E-298/05 DATED 08.07.2008 ISSUED BY THE CONVENER OF THE TRIPUNITHURA SUB COMMITTEE. EXHIBIT P7 A TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 20828/2008 DATED 13.09.2010. EXHIBIT P8 A TRUE COPY OF THE PROCEEDINGS C-1962/2011 DATED 11.07.2011.** - **EXHIBIT P9 A TRUE COPY OF THE ORDER IN APPEAL NO. HA 5/2011 DATED 16.01.2012 OF THE REGIONAL JOINT LABOUR COMMISSIONER.** - **EXHIBIT P10 A TRUE COPY OF THE JUDGMENT OF THE HON'BLE COURT DATED 21.02.2017 IN W.P.(C)NO. 2660/12.** **EXHIBIT P11 A TRUE COPY OF THE JUDGMENT IN WRIT APPEAL NO. 645/17 DATED 03.04.2017.** **EXHIBIT P12 A TRUE COPY OF THE LETTER SUBMITTED BY THE POOL LEADERS OF POOL NO. 17 DATED 30.03.2017.** **EXHIBIT P13 A TRUE COPY OF THE LETTER DATED 03.04.2017** WPC No.17640 of 2018 39 **ISSUED TOP THE CHAIRMAN, ERNAKULAM DISTRICT COMMITTEE.** **EXHIBIT P14 A TRUE COPY OF THE RELEVANT PAGE OF THE AGENDA FOR THE MEETING.** - **EXHIBIT P15 A TRUE COPY OF THE PROCEEDINGS OF THE MULANTHURUTHY SUB OFFICE OF THE BOARD DATED 14.07.2017.** - **EXHIBIT P16 A TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COMMITTEE DATED 20.07.2017 WITH ITS RELEVANT PAGE.** **EXHIBIT P17 A TRUE COPY OF THE REQUEST DATED 09.10.2017.** - **EXHIBIT P18 A TRUE COPY OF THE REQUEST SEEKING INFORMATION UNDER RTI ACT DATED 13.10.2017.** - **EXHIBIT P19 A TRUE COPY OF THE CASH RECEIPT NUMBER 45956 ISSUED FROM THE BOARD OFFICE.** - **EXHIBIT P20 A TRUE COPY OF THE JUDGMENT DATED 24.10.2017 IN W.P.(C)NO.33796/2017.** - **EXHIBIT P21 A TRUE COPY OF THE REPLY ISSUED BY THE 2ND RESPONDENT OFFICE DATED 26.10.2017.** - **EXHIBIT P22 A TRUE COPY OF THE RELEVANT PAGE OF THE 4TH MEETING OF THE BOARD DATED 06.10.2017.** - **EXHIBIT P23 A TRUE COPY OF THE PROCEEDINGS NO. E25014/17 DATED 01.11.2017 ISSUED BY THE CHAIRMAN OF THE DISTRICT BOARD.** - **EXHIBIT P24 A TRUE COPY OF THE JUDGMENT IN W.P.(C)NO. 35879/2017 DATED 09.11.2017.** - **EXHIBIT P25 A TRUE COPY OF THE PROCEEDINGS DATED 28.11.2017.** - **EXHIBIT P26 A TRUE COPY OF THE PROCEEDINGS OF THE MEETING DATED 07.12.2017 IN THE CHAMBER OF THE CHAIRMAN.** **EXHIBIT P27 A TRUE COPY OF THE PROCEEDINGS OF THE BOARD MEETING DATED 20.12.2017.** **EXHIBIT P28 A TRUE COPY OF THE RELEVANT PAGE OF THE COMMITTEE MINUTES DATED 04.01.2018 APPROVED** WPC No.17640 of 2018 40 **IN THE DISTRICT BOARD MEETING DATED 15.02.2018.** **EXHIBIT P29 A TRUE COPY OF THE LETTER NO. G1/2069/18 DATED 21.02.2018.** - **EXHIBIT P30 A TRUE COPY OF THE MINUTES DATED 15.02.2018 OBTAINED UNDER THE RTI ACT WITH A COVERING LETTER DATED 12.03.2018.** - **EXHIBIT P31 A TRUE COPY OF THE PROCEEDINGS/MINUTES OF THE 10TH MEETING OF THE DISTRICT BOARD DATED 22.03.2018.** - **EXHIBIT P32 A TRUE COPY OF THE PROCEEDINGS OF THE EMERGENCY HELD BY THE CHAIRMAN OF THE STATE BOARD DATED 05.04.2018.** - **EXHIBIT P33 A TRUE COPY OF THE LETTER DATED 09.05.2018 ISSUED BY THE PUBLIC INFORMATION OF THE DISTRICT COMMITTEE TO THE 1ST PETITIONER.** - **EXHIBIT P34 A TRUE COPY OF THE DRAFT MINUTES DATED 17.04.2018 APPROVED THE BOARD MEETING DATED 22.05.2018.** - **EXHIBIT P35 A TRUE COPY OF THE QUERY PUT UNDER RTI ACT BY ONE PRATHEESH VARGHESE A HEADLOCK WORKER DATED 23.11.2017.** - **EXHIBIT P36 A TRUE COPY OF THE REPLY ISSUED BY THE RUBBER MARK DATED 01.01.2018.** **EXHIBIT P37 A TRUE COPY OF THE PROCEEDINGS NO. E25014/17 DATED 25.05.2018 ISSUED BY THE CHAIRMAN, 2ND RESPONDENT.** css/