Jose Abraham v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** ## **WP(C) NO. 3190 OF 2021** ## **PETITIONER:** **JOSE ABRAHAM S/O E.P. ABRAHAM, PROPRIETOR, AISWARYA CERAMICS, MALLAPPALLY ROAD, VENNIKULAM, PURAMATTOM, PATHANAMTHITTA DISTRICT-689 544 BY ADV. SANIL JOSE** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY,**| ||**DEPARTMENT OF LABOUR,**| ||**THIRUVANANTHAPURAM-695 001**| |**2**|**DISTRICT LABOUR OFFICER,**| ||**LABOUR OFFICE, KOLLAM-691 003.**| |**3**|**ASSISTANT LABOUR OFFICER,**| ||**LABOUR OFFICE, MALLAPPALLY-689 585**| |**4**|**KERALA HEADLOAD WORKERS WELFARE BOARD,**| ||**PATHANAMTHITTA -689 645,**| ||**REPRESENTED BY ITS DISTRICT OFFICER.**| ||**BY ADV SRI.JUSTIN JACOB, GOVT.PLEADER**| ||**ADV.SRI.K.SIJU**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.10.2021, THE COURT ON 29.10.2021 DELIVERED THE FOLLOWING:** **-:2:-** W.P.(C) No.3190/21 ## **BECHU KURIAN THOMAS, J. -----------------------------------W.P.(C) No.3190 of 2021 --------------------------------------** Dated this the 29[th] day of October, 2021 ## **JUDGMENT** Petitioner's request for registration of his employees as headload workers in his establishment was rejected by the registering authority under the Kerala Headload Workers Act, 1978. The appeal preferred by the petitioner was also rejected and hence he has invoked the jurisdiction of this Court under Article 226 of the Constitution of India. 2. Petitioner is the owner of an establishment by name 'M/s Aiswarya Ceramics'. The said establishment is situated in an area covered by the scheme framed under the Act. Applications for registration of his employees as headload workers filed under Rule 26A of the Kerala Headload Workers Rules, 1981 (for short 'the Rules') were rejected on the ground that, the employees were working as salesmen and that if they are permitted to be registered as headload workers, the existing headload workers attached to the Welfare Board will be deprived of their livelihood. An alleged direction **-:3:-** W.P.(C) No.3190/21 of the Labour Commissioner was also relied upon stating that if identity cards are issued to attached labourers, the headload workers under the Welfare Board will lose their job opportunities. 3. Petitioner preferred an appeal before the Appellate Authority. However, the Appellate Authority by order dated 16.11.2020 rejected the appeal, stating that the employees of the petitioner were working as salesmen, and that, if they are permitted to be registered as headload workers, the existing attached workers in the Welfare Board will be deprived of their livelihood. The alleged direction from the Labour Commissioner was also relied upon by the appellate authority while rejecting the appeal. In other words, the same reasoning, as stated by the registering authority, was repeated by the appellate authority also. This writ petition is preferred challenging the aforesaid orders of the authorities under the Act. 4. A statement has been filed on behalf of the fourth respondent stating that the establishment of the petitioner is situated in pool 48 of Vennikulam and that 9 registered headload workers from the pool are regularly engaged by the petitioner. It was also stated that granting registration to the permanent workers of the petitioner will adversely affect the job of registered workers attached to the Board and that W.P.(C) No.3190/21 **-:4:-** the Registering Authority had issued orders declining the application based upon the objection raised by the fourth respondent- the Kerala Headload Workers Welfare Board. 5. I have heard Adv. Sanil Jose, the learned counsel for the petitioner, Adv. Justin Jacob, the learned Government Pleader and Adv.K.Siju, the learned counsel for the fourth respondent. 6. There is no dispute that the employees of the petitioner are working in his establishment, that too, as permanent workers. None has disputed the capacity of petitioner's employees to carry out loading and unloading works. Since the workers of the petitioner had applied for registering as headload workers and the fact that the petitioner expressed his willingness to employ them as headload workers in his establishment itself is sufficient indication, that they are capable and willing to do loading and unloading works in the petitioner's establishment. 7. The denial of registration by the third respondent is for the reason that if registration is granted to the petitioner's employees, the same will affect the job opportunities of the headload workers attached to the Kerala Headload Workers Welfare Board. It was also W.P.(C) No.3190/21 **-:5:-** stated that the employees of the petitioner were salesmen and not doing any headload work. In my considered view, the reasons stated by the registering authority as well as the appellate authority, to deny registration to the employees of petitioner, are perverse and not valid in the eyes of law. 8. The right of an employer to engage his own permanent employees as headload workers, in an area covered by the headload workers scheme, under the Act, is subject to only one requirementthe employees must be registered as headload workers under the Act. This Court had in **Rajeev v. District Labour Officer** (2010 (4) KLT 783) as well as in **Manzoor v. District Labour Officer** (2021 (5) KLT 554) held that, while considering the application for registration as headload workers under Rule 26A of the Rules, the Registering Authority's look out is not whether the applicant was a headload worker or not prior to such registration, but whether the employer is willing to engage the applicant as a headload worker. It was further held that there was no requirement under law, that the applicant must have been working in the establishment as a headload worker for becoming eligible for such registration. The fact that the application was submitted by the workers themselves is evidence of the W.P.(C) No.3190/21 **-:6:-** willingness of the workers to work as headload workers. The nature of work of the applicants prior to the application has no significance as the applicants could not have worked as headload workers or do headload work in a scheme covered area without obtaining registration. 9. In another decision in **Prasanna Kumar V. District Labour Officer** (W.P.(C)No.6287 of 2021), it was observed by this Court as 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 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._ W.P.(C) No.3190/21 **-:7:-** 10. The aforesaid decision 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. 11. When the employees of the petitioner have expressed their inclination to work as headload workers and even applied for registration, there is no legal justification, as happened 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, to deny registration to the employees of the petitioner, as mentioned earlier are perverse and not valid 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. 12. In view of the above, Ext.P3 and Ext.P4 are liable to be set aside. It is declared that the employees of the petitioner, who had applied for registration as headload workers, are entitled to obtain registration as headload workers, attached to the establishment of the petitioner. **-:8:-** W.P.(C) No.3190/21 13. Accordingly, there will be a direction to the third respondent to grant registration to the employees of the petitioner who had applied for registration as headload workers attached to the petitioner, and issue necessary identity cards as contemplated under Rule 26A of the Kerala Headload Workers Rules, 1981, in a timebound manner, at any rate, within a period of one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. ## **Sd/-** **BECHU KURIAN THOMAS JUDGE** vps W.P.(C) No.3190/21 ## **-:9:-** ## **APPENDIX OF WP(C) 3190/2021** ## **PETITIONER'S/S' EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE CURRENT TRADE LICENSE FOR THE PERIOD 18.9.2020 TO 31.3.2021 ISSUED BY THE PURAMATTOM GRAMA PANCHAYAT WITH TRUE ENGLISH TRANSLATION OF THE RELEVANT PAGE.** **EXHIBIT P2** **TRUE COPY OF THE MUSTER ROLL MAINTAINED BY THE PETITIONER FROM JANUVARY 2019 TO DECEMBER 2020.** **EXHIBIT P3** **TRUE COPY OF THE ORDER DATED 12.3.2020 PASSED BY THE 3RD RESPONDENT WITH ITS TRUE ENGLISH TRANSLATION.** **EXHIBIT P4** **TRUE COPY OF THE ORDER DATED 16.11.2020 PASSED BY THE 2ND RESPONDENT WITH ITS TRUE ENGLISH TRANSLATION.** **EXHIBIT P5** **TRUE COPY OF THE JUDGMENT DATED 12.10.2015 IN W.P.C NO. 19800/2015 OF THIS HON'BLE COURT.**