JIBIN V.J. and others v. District Labour Officer, Thiruvananthapuram District; The Assistant Labour Officer, Neyyattinkara; and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **WP(C).No.22735 OF 2019(N)** ## **PETITIONER/S:** - **1 JIBIN V.J., AGED 26 YEARS, ALUMMOOTTUVILA,POONKODE,MEPPUKKADA, MALAYINKEEZHU.P.O,THIRUVANANTHAPURAM.** - **2 AUGUSTIN.D, VARUVILAKATHU VEEDU,ANTHIYOORKONAM, KOLLODU.P.O,THIRUVANANTHAPURAM.** - **3 BIJU.G, KARIMANCODE VEEDU,MEPPUKKADA, MALAYINKEEZHU.P.O,THIRUVANANTHAPURAM.** - **4 SHAJI.Y, KRIPA BHAVAN,POOMCODE,MEPPUKKADA, MALAYINKEEZHU.P.O,THIRUVANANTHAPURAM.** - **5 RATHEESH KUMAR.C, ELLUMOLA PUTHEN VEEDU,MEPPUKKADA, MALAYINKEEZHU.P.O,THIRUVANANTHAPURAM.** - **6 SANAL KUMAR.R, THADATHARIKATHU VEEDU,MEPPUKKADA,MALAYINKEEZHU.P.O, THIRUVANANTHAPURAM.** - **7 BIJU.G, MARICHEENIVILA,ROADINKARA,PUTHEN VEEDU, MEPPUKKADA,MALAYINKEEZHU.P.O, THIRUVANANTHAPURAM.** - **8 RAJESH.T, KALLUVETTANKUZHI KADAYARA,PUTHEN VEEDU, MILODE,KOLLODE.P.O,THIRUVANANTHAPURAM.** **BY ADVS.** **SRI.C.S.AJITH PRAKASH SRI.T.K.DEVARAJAN SMT.T.N.SREEKALA SRI.FRANKLIN ARACKAL** **WP(C).No.22735 OF 2019(N)** **2** ## **RESPONDENT/S:** - **1 THE DISTRICT LABOUR OFFICER, THIRUVANANTHAPURAM DISTRICT, THIRUVANANTHAPURAM DISTRICT, THOZHILBHAVAN,VIKASBHAVAN.P.O, THIRUVANANTHAPURAM-695033.** - **2 THE ASSISTANT LABOUR OFFICER, NEYYATTINKARA,OFFICE OF THE ASSISTANT LABOUR OFFICER,MINI CIVIL STATION, NEYYATTINKARA,THIRUVANANTHAPURAM DISTRICT-695121. SMT POOJA SURENDRAN, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.22735 OF 2019(N)** **3** ## **JUDGMENT** Being aggrieved by the rejection of the application filed by the petitioners under Rule 26A of the Kerala Headload Workers Rules, 1981 (“Rules” for short), which order was confirmed by the Appellate Authority, the petitioners are before this Court with this Writ petition filed under Article 226 of the Constitution of India. 2. The petitioners contend that they are residents of the Meppukada area within the limits of the Malayinkeezhu Panchayath. They eke out a living by doing loading and unloading works in some establishments functioning in that area. They contend that they filed applications under Form No.IX seeking registration under Rule 26A of the Rules. The registering authority summoned the petitioners and they were heard. He then visited the area of operation of the petitioners on 3.12.2018 and 4.12.2018 and met the employers and the registered workers of the area. He received inputs that none of the petitioners had ever engaged themselves in loading and unloading works in the Meppukada area. The employers as well as the other employees are said to have informed the Registering authority that the work available in the area is very low and if **WP(C).No.22735 OF 2019(N)** **4** registration is granted to the petitioners, they would be deprived of their livelihood. Based on the above information gathered by the registering authority, the application for registration was rejected. The petitioners went up in appeal before the Appellate Authority under Rule 26C of the Rules. The Appellate Authority confirmed the findings of the registering authority. 3. Sri.C.S.Ajith Prakash, the learned counsel appearing for the petitioners, submitted that the order passed by the registering authority as upheld by the Appellate Authority cannot be sustained. He points out that the registering authority as well as the Appellate Authority has proceeded on the premise that the petitioners should have been headload workers at the time of applying for registration. He points out that in **Rajeev V District Labour Officer[1]** , it was held by this Court that denial of registration to a person on the ground that he is not already a headload worker would be a violation of his fundamental right to practice any profession. All that is required for a prospective worker who applies for registration is a good physique and an employer who is prepared to engage him. He points that this view of the learned Single Judge was upheld by the Division bench in **Gangadharan C.P. and Another** v **Abdul Nasir and Others[2]** . It was then contended that while considering an application for > 1 2010 (4) KLT 783 2 2016 (5) KHC 238 **WP(C).No.22735 OF 2019(N)** **5** registration, the registering authority was legally bound to issue a notice under Form No.X to the employee and the employer. This provision was not complied with. Instead, the registering authority visited the area and took the statement of the registered workers who were against grant of registration to the petitioners. It is further submitted that the petitioners herein had applied for registration as “attached workers” and registration could not have been denied on the ground that it would affect the rights of the existing workers. He would rely on **Gangadharan** (supra) and it was argued that workers having registration in the area cannot be heard to contend that grant of registration to “attached workers” of establishment would affect their right of livelihood. The learned counsel would then refer to the order passed by the Appellate Authority and it was argued that neither the petitioners nor their employers were heard before passing the order, but the authority instead, merely upheld the order passed by the registering authority. 4. Heard the learned Government Pleader, who sought to sustain the order. It is submitted that Exhibit-P10 would show that the petitioners herein were heard by the 2[nd] respondent before the order is passed. He would also advert to the statements of the employers recorded by the registering authority to bring home his point that the petitioners herein **WP(C).No.22735 OF 2019(N)** **6** were not working as headload workers and on the date of visit of the officer, the petitioners were not even present in the area. It is submitted that there is no error in hearing the affected unattached workers, as their earnings would be substantially affected if registration is granted to the petitioners. 5. I have anxiously considered the submissions advanced and have perused the entire records. 6. Exhibit P10 is the order rejecting the application filed by the petitioners seeking registration. It would reveal that the rejection of registration was on the ground that the petitioners are not previously employed as headload workers in the area. That could not have been a consideration while deciding on an application filed under Rule 26A of the Headload Workers Rules. This position was lucidly explained by a learned Single Judge in **Rajeev** (supra). The relevant portion in paragraph 6 of the report is extracted below for easy reference. ……………...If for working as a headload worker in a scheme covered area, registration under Rule 26A is mandatory, it defies logic as to how for registration under Rule 26A, Respondents 1 and 2 can insist that applicants who apply for registration under Rule 26A should be already headload workers working under the employer as proved by registers maintained as per Rules. For example take the case of a young man who comes of age and decides to pursue headload work as an avocation and means of livelihood for himself and **WP(C).No.22735 OF 2019(N)** **7** his family. He finds an employer, but the employer tells him that he cannot employ him as a headload worker unless he gets a registration under Rule 26A, which the employer is bound to insist upon in view of Clause 6 of the Scheme. He files an application under Rule 26A. Can he be denied registration on the ground that he is not already a headload worker working under the said employer? I do not have to think twice to give a big 'NO' as an answer because that is the only logical answer. If registration is denied to such an individual that would be violation of his fundamental right under Article 19(1)(g) of Constitution of India, which guarantees to every citizen of India the right to practice any profession, or to carry on any occupation, trade or business. No legislation can deny that fundamental right to a citizen. If there is a legislation denying such a right to any citizen that would be unconstitutional and liable to be struck down as such or read down to make it constitutional. Therefore, if Rule 26A pre-supposes employment as a headload worker under an employer, for being eligible for registration under Rule 26A, that Rule would be unconstitutional insofar as it would violate the fundamental right of a citizen to engage himself in and carry on the profession of a headload worker, since under Clause 6 of the Scheme without registration under Rule 26A, he cannot engage himself in headload work. Consequently, Rule 26A has to be construed and read down so as to make it constitutional. It is true that in Form No. IX, which is the form prescribed for submitting application for registration under Rule 26A, name and address of the employer under whom the headload worker is working and the date of commencement of work under the employer are to be given. But under Clause 6 of the scheme, no headload worker who is not a registered headload worker under the provisions of the Kerala Headload Workers Rules shall be allowed or required to work in any area to which the scheme applies, from the date of commencement of, the functional operation of the scheme in that area. If without registration nobody can work as a headload worker, I fail to understand how a person who wants to start work as a headload worker for the first time can be insisted on to prove that he was already working under the employer as a condition for entertaining an application for registration. Therefore I am of opinion that Rule 26A and the Form IX should be so construed and read **WP(C).No.22735 OF 2019(N)** **8** down that for getting registration, what is required is a good physic and, an employer who is prepared to engage the applicant as a headload worker and it is not necessary that he should have already been working under the employer under whom he seeks registration as headload worker for becoming eligible for such registration. 7. As rightly held by the learned counsel, the principles laid down above has been approved in subsequent judgment of larger Benches of this Court. In that view of the matter, denial of registration on the ground that there are no records evidencing the fact that the petitioner was already working as a headload worker in an establishment cannot be sustained. 8. Now the question is whether, the objection raised by other unattached workers of the area could have been considered by the registering authority to deny registration. This position is also no longer res integra. In **C.P. Gangadharan** (supra), a Division Bench of this Court had occasion to observe as follows in paragraph No. 17 of the report. Yet another aspect to be noted is that the status of the persons, who are the existing registered unattached workers in the area, who get aggrieved if any order is passed by the registering authority granting registration to more number of workers in the area and thus enabling them to prefer an appeal in terms of Rule 26C of the Rules, was made with reference to the right to live, which was declared as inclusive over right to livelihood as made clear by the Apex Court in Olga Telli's case and DTC case (cited supra). Applying the very same logic and reasoning, this Court is of the view that a similar right is there for a person, who becomes eligible, to get registered and to eke out his livelihood in the area. On a given date, a person may not be eligible but on attaining the eligibility, **WP(C).No.22735 OF 2019(N)** **9** particularly on attaining majority and on feeling the need to maintain his family, [which may be consisting of different persons/ dependents /patients / aged parents/widows/children and the like], at least by doing some loading or unloading operations, it definitely amounts to his right to live, which naturally includes the right to livelihood as well. This constitutional right to the person concerned cannot be denied to him merely for the reason that somebody else, who has already got berth may have to adjust a bit more with the available infrastructure. Nobody can contend that those who became fortuitous to have obtained registration earlier could alone continue as such, denying similar rights to the others. Under such circumstances, it is always for the statutory authorities to regulate the extent of work available among the eligible hands by appropriate means/measures, either by way of rotation or otherwise and it is not by promoting only one lot and pushing down the other lot for ever. As such, eventhough the already existing registered unattached workers could be said as persons aggrieved on granting registration to more persons in the area and hence are eligible to prefer an appeal in terms of Rule 26C, it is for the appellate authority to consider all these aspects to an appropriate extent, giving effect to the scheme of the statute, without compromising the fundamental principle of equality before law and such other relevant provisions. In the instant case, since the registration sought for by the writ petitioners was in respect of 'attached workers' of the establishment and since the appellants are admittedly the registered unattached workers in the area, they could never have objected to such registration under any circumstance.” 9. In other words, even though the existing unattached workers may be reckoned as aggrieved persons granting registration to the petitioners, their objection could not have been a valid consideration to deny registration. The petitioners are having a right, on their becoming eligible, to get registered and to eke out their livelihood in the area. Their constitutional right to eke out a livelihood by practicing a profession of their **WP(C).No.22735 OF 2019(N)** **10** choice cannot be denied to them merely for the reason that the earnings of the workers registered earlier might be adversely affected. In the case on hand, the application was filed in their capacity as attached workers and hence, under no circumstance registration could have been denied on the ground that the work in the area being hard to come by the earnings of the registered workers would be adversely affected. 10. In view of the above, the order passed by the registering authority cannot be sustained. 11. In so far as the order passed by the 1[st] respondent is concerned, the petitioners have a contention that neither the petitioners nor their employers were afforded an opportunity of being heard before confirming the order passed by the registering authority. I find considerable merit in the said submission. Rule 26C of the Headload Workers Rules, 1981 speaks about the procedure for filing an appeal. Sub Section (2) states that on receipt of appeal, the appellate authority may make such enquiries as he deems fit and after giving the employer, if any and headload worker an opportunity of being heard and decide the appeal within a period of thirty days. A perusal of Exhibit P16 order passed by the Appellate Authority reveals that neither the petitioners nor their employers were afforded an opportunity of being heard before passing the order. **WP(C).No.22735 OF 2019(N)** **11** There is yet another matter. While confirming the order passed by the registering authority, reliance has been placed on certain statements given by the employers and recorded by the 2[nd] respondent. However, Exhibit P10 would show that the petitioners were heard on 17.10.2018 and thereafter on 3.12.2018 and 4.12.2018, the registering authority had visited Meppukada and made enquiries. There is no case that the procedure as contemplated under Section 26A(2) was followed and that notice was issued under Form No.X to the employers or the contractors. There is also no mention in Exhibit P10 order that the statement of the employers were recorded and they had given in writing that the petitioners had never worked in their establishments. In that view of the matter, I am of the considered opinion that Exts. P10 and P16 orders are vitiated for reasons stated above. This Writ Petition will stand allowed. Exts.P10 and P16 will stand set aside. The 2[nd] respondent shall consider the applications afresh in the light of the observations above. **Sd/-** ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** DSV/5.3.2020 **WP(C).No.22735 OF 2019(N)** **12** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE ONLINE APPLICATION SUBMITTED BY THE 1ST PETITIONER DATED 20.06.2018 BEFORE THE 2ND RESPONDENT/THE REGISTERING AUTHORITY.** - **EXHIBIT P2 A TRUE COPY OF THE ONLINE APPLICATION SUBMITTED BY THE 2ND PETITIONER DATED 20.06.2018 BEFORE THE 2ND RESPONDENT/THE REGISTERING AUTHORITY.** - **EXHIBIT P3 A TRUE COPY OF THE ONLINE APPLICATION SUBMITTED BY THE 3RD PETITIONER DATED 20.06.2018 BEFORE THE 2ND RESPONDENT/THE REGISTERING AUTHORITY.** - **EXHIBIT P4 A TRUE COPY OF THE ONLINE APPLICATION SUBMITTED BY THE 4TH PETITIONER DATED 20.06.2018 BEFORE THE 2ND RESPONDENT/THE REGISTERING AUTHORITY.** - **EXHIBIT P5 A TRUE COPY OF THE ONLINE APPLICATION SUBMITTED BY THE 5TH PETITIONER DATED 20.06.2018 BEFORE THE 2ND RESPONDENT/THE REGISTERING AUTHORITY.** - **EXHIBIT P6 A TRUE COPY OF THE ONLINE APPLICATION SUBMITTED BY THE 6TH PETITIONER DATED 20.06.2018 BEFORE THE 2ND RESPONDENT/THE REGISTERING AUTHORITY.** - **EXHIBIT P7 A TRUE COPY OF THE ONLINE APPLICATION SUBMITTED BY THE 7TH PETITIONER DATED 20.06.2018 BEFORE THE 2ND RESPONDENT/THE REGISTERING AUTHORITY.** - **EXHIBIT P8 A TRUE COPY OF THE ONLINE APPLICATION SUBMITTED BY THE 8TH PETITIONER DATED 20.06.2018 BEFORE THE 2ND RESPONDENT/THE REGISTERING AUTHORITY.** - **EXHIBIT P9 A TRUE COPY OF THE JUDGMENT DATED 20.08.2018 IN W.P(c)NO.27986/2018.** - **EXHIBIT P10 A TRUE COPY OF THE PROCEEDINGS** **WP(C).No.22735 OF 2019(N)** **13** **NO.HL/490/2018 DATED 05.12.2018 WITH ENGLISH TRANSLATION.** **EXHIBIT P11 A TRUE COPY OF THE APPEAL PETITION FILED BY THE PETITIONERS BEFORE THE APPELLATE AUTHORITY DATED 19.01.2019.** - **EXHIBIT P12 A TRUE COPY OF THE JUDGMENT IN W.P(C)NO.2862/2019 DATED 31.01.2019.** - **EXHIBIT P13 A TRUE COPY OF THE HEARING NOTICE DATED 13.02.2018 FIXING THE DATE OF HEARING ON 06.03.2019 WITH ENGLISH TRANSLATION.** - **EXHIBIT P14 A TRUE COPY OF THE LETTER ISSUED BY THE LOCAL COMMITTEE SECRETARY TO THIRUVANANTHAPURAM JILLA HEADLOAD AND GENERAL WORKERS UNION CITU DATED 06.03.2019 WITH ENGLISH TRANSLATION.** - **EXHIBIT P15 A TRUE COPY OF THE HEARING ADJOURNMENT NOTICE DATED 07.03.2019 WITH ENGLISH TRANSLATION.** - **EXHIBIT P16 A TRUE COPY OF THE APPELLATE ORDER NO.G(2)/262/19 DATED 15.07.2019 WITH ENGLISH TRANSLATION.** - **EXHIBIT P17 A TRUE COPY OF THE CERTIFICATE ISSUED BY RAGAM TRADERS WITH ENGLISH TRANSLATION.** ## **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R1(A) TRUE COPY OF THE STATEMENT GIVEN BY SUNIL T., MANAGER, NEXA MARKETING, MEPPUKADA, THIRUVANANTHAPURAM, BEFORE THE A.L.O., THIRUVANANTHAPURAM.** - **EXHIBIT R1(B) TRUE COPY OF THE STATEMENT GIVEN BY MUKHESH KUMAR, OWNER OF K.D.GRANITES, MEPPUKADA, THIRUVANANTHAPURAM, BEFORE THE A.L.O., THIRUVANANTHAPURAM.** - **EXHIBIT R1(C) TRUE COPY OF THE STATEMENT GIVEN BY SURENDRAN , RAGAM TRADERS, MEPPUKADA, THIRUVANANTHAPURAM, BEFORE THE A.L.O.,** **WP(C).No.22735 OF 2019(N)** **14** ## **THIRUVANANTHAPURAM.** **EXHIBIT R1(D) TRUE COPY OF THE STATEMENT GIVEN BY THE HEADLOAD WORKERS.** **//TRUE COPY// P.A.TO JUDGE**