KERALA HEADLOAD WORKERS WELFARE BOARD v Leyon Enterprises & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945** **WA NO. 168 OF 2022** **AGAINST THE JUDGMENT DATED 05/11/2021 IN WP(C)NO.11659 OF 2020** **OF HIGH COURT OF KERALA** ## **APPELLANT/1ST RESPONDENT:** **KERALA HEADLOAD WORKERS WELFARE BOARD – KHWWB, PATHANAMTHITTA-689 645,REPRESENTED BY ITS CHAIRMAN.** **BY ADV K.SIJU** ## **RESPONDENTS/WRIT PETITIONERS & RESPONDENTS 2 & 3:** - **1 SALIN JOSE S., LEYON ENTERPRISES, G.F 8/97, M.M.JUNCTION, PANDALAM, PATHANAMTHITTA-689 501.** - **2 BALARAJ.R,** - **PADAPPURATHU VILA, KARUMANOOR, PARASALA.P.O, THIRUVANANTHAPURAM-695 502.** - **3 AJI.N, KURUVIPAZHANJI VILA VEEDU, KARUMANOOR, PARASALA.P.O, THIRUVANANTHAPURAM-695 502.** - **4 SAJI.N, ABISHA BHAVAN, MURIANKARA, PARASALA.P.O, THIRUVANANTHAPURAM-69 502.** - **5 DHAS.V,** - **E.V.BHAVAN, THETTIKUZHI, KODAVILAKOM, PARASALA.P.O, THIRUANANTHAPURAM-695 502.** - **6 THE ASSISTANT LABOUR OFFICER, ADOOR, PATHANAMTHITTA-691 523.** - **7 THE DISTRICT LABOUR OFFICER, THE APPELLATE AUTHORITY, PATHANAMTHITTA-689 45.** **Writ Appeal No.168 of 2022** 2 ## **BY ADVS.** **SRI.THOMAS GEORGE (B/O) SRI. T.K.VIPINDAS, GOVERNMENT PLEADER (B/O)** **THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Writ Appeal No.168 of 2022** 3 **AMIT RAWAL & C.S.SUDHA, JJ.** **------------------------------------------------------------------------Writ Appeal No.168 of 2022** **------------------------------------------------------------------------Dated this the 28[th] day of February 2024** ## **J U D G M E N T** ## **Amit Rawal, J.** The present writ appeal has been preferred against the judgment of the learned Single Bench whereby the writ petition preferred by the respondents/writ petitioners against the orders of the authorities denying the registration under the Kerala Headload Workers Act, 1978 has been allowed. 2. The respondent/1[st] petitioner is carrying on the business of sale of cement products, concrete windows, door frames, decorative pillars etc. under the name and style 'Leyon Enterprises' at Adoor, Pathanamthitta District in Kerala. Besides that, is also a manufacturer of the aforementioned products, whereas respondent Nos. 2 to 5 are permanent workers employed by the 1[st] respondent. Expressing willingness to engage respondent nos.2 to 5, who had agreed to offer their services, for loading and unloading, submitted an application for **Writ Appeal No.168 of 2022** 4 registration on 02/12/2019, though they were working with the 1[st] respondent since 2017. The authority under the Act rejected the application and the appeal preferred also was dismissed. Learned Single Bench after perusal of the records brought before it, i.e., the muster roll, wage register and salary receipts, found that the workers who were seeking registration, were already employed and attached to the establishment, thus allowed the writ petition. 3. Learned counsel appearing on behalf of the appellant/Headload Workers Welfare Board submitted that the judgment of the Single Bench is not sustainable in the eyes of law, for, the pith and substance of the judgment is based upon the findings rendered in W.P.(C).No.27087/2020 decided on 23/09/2021 in _**Manzoor E. & Others v. District Labour Officer, Thiruvananthapuram, 2021(5) KHC 557**_ . The said view has already been held to be not good in law in the decision rendered by the Division Bench in _**Kerala Headload Workers Welfare Board v. Nishad, 2022 (5) KLT 188** ._ 4. The learned Single Judge in **Manzoor** ( _Supra_ ), against which W.A.No.175/2022 has been filed, which is also listed today, had **Writ Appeal No.168 of 2022** 5 noticed that even the worker who intends to do the business of loading and unloading without attachment, could apply for an application for registration. The said view has been held to be not good in law by noticing the amended provisions of the Act, that is Section 9A inserted with effect from 07/04/2018. 5. The competent authority while processing the application for registration, visited the premises of the establishment, conducted an enquiry and found that the workers were not attached or employed and the story of employment since 2017 was only coined for the purpose of registration, nothing else. The workers are not permanent headload workers, ie., the primary workers, but are incidental and their services are availed only on need basis. 6. On the other hand, learned counsel appearing on behalf of the respondents/writ petitioners countered the arguments of the counsel appearing on behalf of the appellant to submit that the judgment of the learned Single Bench is not based upon the _ratio decidendi_ culled out in the judgment of **Manzoor** ( _Supra_ ) dated 23.09.2021, but on examination of the record, ie., the salary register, which _prima facie_ found that the workers were attached and had been working with the **Writ Appeal No.168 of 2022** 6 establishment since 2017 though the application for registration was submitted in December 2019. Even the alleged enquiry did not see the light of the day to form a different opinion to support the allegations of incidental works and urged this court for dismissal of the writ appeal by upholding the judgment of the learned Single Bench. 7. We have heard learned counsel for the parties and appraised the paper book. 8. In the judgment rendered in **Manzoor** ( _Supra_ ) dated 23/09/2021, the learned Single Bench while examining the case law on the point involved, ie., the Full Bench of this Court in **Raghavan v. Superintendent of Police, 1998 (2) KLT 732, Theresa Jose v. Sub Inspector of Police, 2015 (1) KLT 485 (LB** ) and **Rajeev v. District Labour Officer, 2010 (4) KLT 783** as well as the amendments in Section 9A with effect from 07/04/2018, in paragraph 16 held as under: _“16. Our analysis of the statutory scheme leads us to draw the following conclusions:_ _a. The definition of headload worker under Section 2(m) of the Act makes a distinction between an attached worker and an unattached worker. While the former is a person who is employed or engaged by an employer,_ **Writ Appeal No.168 of 2022** 7 _either directly or through a contractor, to work in a particular establishment, the latter is a person who is not engaged to work in any particular establishment._ _b. The attached worker, at the time of his employment or engagement need not be registered in terms of Rule 26A. It is sufficient that he is engaged for the purpose of doing headload work in the establishment. This is so even if the establishment is located in a scheme covered area because the 1983 Scheme does not apply to an attached worker. The unattached worker, however, has to be a registered headload worker in view of the specific provisions of Section 9A of the Act._ _c. An attached worker must do headload work in the particular establishment to which he is attached, before seeking registration as a headload worker in terms of Rule 26A of the Rules. The enquiry contemplated under Rule 26A for granting registration is essentially a factfinding exercise to ensure that the applicant for registration is actually doing headload work in the establishment concerned. The evidence in that regard must be found in the records maintained by the employer as mandated in Section 26 of the Act read with the Rules._ _d. An unattached worker must first get himself attached to an establishment and do headload work therein. Only thereafter can he seek registration as a headload worker in terms of Rule 26A. The Act and Rules do not permit a person who is not attached to any establishment to apply for registration as a headload worker without first demonstrating his capacity to do headload work in an establishment._ **Writ Appeal No.168 of 2022** 8 _e. While the above statutory scheme is apparent from a reading of the statutory provisions, it cannot be seen as one violating the fundamental rights of any person under Article 19(1)(g) of the Constitution since Article 19(6) makes the right subject to reasonable restrictions that can be imposed in the interests of the general public. A restriction in a welfare legislation that is intended to safeguard the health of a worker has to be seen as in the interests of the general public. f. In the light of our findings as above, we do not approve of the view taken in Rajeev (supra) or Manzoor (supra) that even an unattached worker can apply for registration under Rule 26A without doing any headload work, so long as he has a good physique and is willing to do such work. The view in Rajeev (supra), that was followed in Manzoor (supra), was taken without noticing the distinction between attached and unattached workers in the definition of a headload worker, as also the fact that the pre-requisite of being a registered head load worker, for being allowed or required to work in a scheme covered area, applied only to a 'headload worker who is not permanently employed by an employer or contractor i.e., an unattached worker. The said decisions do not lay down the correct law in this regard and hence we overrule the said decisions on the above point._ _g. An attached worker, on the other hand, does not have to be registered as a headload worker for doing headload work. He can be employed or engaged to do such work in the establishment of his employer and_ **Writ Appeal No.168 of 2022** 9 _thereafter seek registration in terms of Rule 26A once he starts doing headload work in that establishment. Further, so long as he is in the employment or engagement of an employer and attached to the latter's establishment, he will not come under the coverage of the 1983 Scheme either. Clause 6 of the Scheme will therefore not be attracted in his case, to prevent him from working in a scheme covered area. h.When an application for registration is preferred by an attached worker, the enquiry by the registering authority must only be to ascertain whether the applicant is actually engaged in doing headload work in the establishment to which he is attached and if so, whether the headload work done by him is of predominant nature. The information in that regard can be gathered from the registers maintained by the employed in terms of Section 26 of the Act read with the Rules as also through a physical inspection at the premises of the establishment concerned. The registering authority cannot reject an application for registration on the ground that existing pool workers have raised objections to granting of such registrations. Unattached pool workers have no right to object to the grant of registration under Rule 26A to a worker who is attached to an establishment. It has been so held by a Division Bench of this Court in Gangadharan (supra). Their objections can only be raised at a time when an attached worker, who gets registered in terms of Rule 26A relinquishes his employment or engagement with the establishment to which he was attached, and then seeks to join the_ **Writ Appeal No.168 of 2022** 10 _scheme in the area concerned, as a registered but unattached worker.”_ 9. The genesis of the findings rendered are primarily based upon the fact that the amendment was caused in the Act by inserting Section 9A with effect from April 2018 which was understood to be in the manner that the headload worker if not attached or employed, need not obtain a registration and only after having rendered work for a certain period, would be eligible for registration under Rule 26A of the Headload Workers Welfare Rules. However in the instant case as noticed above, the learned Single Judge while allowing the writ petition in paragraph 17 to 19 held as under: _“17. In this context, it is relevant to mention that, pursuant to the order dated 29-07-2020 directing production of records of the first petitioner, the same were produced on 11-08-2020 and are retained by the Registry of the Court. The staff attendance registers of 2017 to 2021 produced by the first petitioner shows that the employees were engaged as workers in first petitioner's establishment. The wage register and salary receipts also show the same thing. However, the said documents are unilateral and reference or reliance upon them is not required in the light of the proposition of law adopted in this case._ _18. In view of the above, Ext.P8 and Ext.P15 are liable to be set aside. It is declared that petitioners 2 to 5 are entitled to obtain registration as headload workers, attached to the establishment of the first petitioner._ **Writ Appeal No.168 of 2022** 11 _19. Accordingly, there will be a direction to the third respondent to grant registration to petitioners 2 to 5 as headload workers, attached to the first petitioner and issue necessary identity cards to them as contemplated under Rule 26A of the Kerala Headload Workers 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.”_ 10. The grounds of appeal do not dispute the factum of examination of the records consisting of staff attendance register, salary receipts, wage register etc. Thus the findings of the Board and the Appellate Authority rejecting the application for registration on the premise that the workers attached were incidental, in our considered view, has rightly been rejected by the learned Single Bench. We do not find any illegality and perversity in the judgment of _sans_ the learned Single Bench. Appeal merit, accordingly dismissed. SD/- **AMIT RAWAL JUDGE** SD/- **C.S.SUDHA JUDGE** ak