Kerala Headload Workers Welfare Board v. Manzoor E. & 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. 175 OF 2022** **AGAINST THE JUDGMENT DATED 23/09/2021 IN WP(C)NO.27087 OF 2020** ## **OF HIGH COURT OF KERALA** ## **APPELLANT/3RD RESPONDENT:** **KERALA HEADLOAD WORKERS WELFARE BOARD – KHWWB, DISTRICT COMMITTEE, USHAS BUILDING, CHAMMAKKADA, KOLLAM - 691 001 REPRESENTED BY ITS CHAIRMAN.** **BY ADV K.SIJU** ## **RESPONDENTS/WRIT PETITIONERS & RESPONDENTS 1 & 2:** - **1 MANZOOR E., PROPRIETOR, K.E.K.CASHEW V/404B, MANGAD P.O., KILIKOLLOOR, KOLLAM - 691 004.** - **2 NAZARUDEEN, SHAJI NIVAS, MUNDAKKAL, KOLLAM - 691 010.** - **3 NAUSHAR, KARUVELIL PURAYIDAM, ERAVIPURAM P.O., KOLLAM - 691 011.** - **4 FIROZ KHAN, SHAJI NIVAS, MUNDAKKAL, KOLLAM - 691 010.** - **5 DISTRICT LABOUR OFFICER, THIRUVANANTHAPURAM - 695 036.** - **6 ASSISTANT LABOUR OFFICER, IIND CIRCLE, KOLLAM - 691 013. BY ADVS. T.R.RAJAN SRI.T.K.VIPINDAS, GOVERNMENT PLEADER (B/O)** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Writ Appeal No.175 of 2022** 2 ## **AMIT RAWAL & C.S.SUDHA, JJ.** **-------------------------------------------------------------------------** **Writ Appeal No. 175 of 2022** **------------------------------------------------------------------------Dated this the 28[th] day of February 2024** ## **J U D G M E N T** ## **Amit Rawal, J.** The present _intra_ court appeal is directed against the judgment of the learned Single Bench dated 23.09.2021 rendered in W.P.(C).No.27087/2020 whereby the claim of the respondents/petitioners for seeking registration as headload worker, has been allowed by noticing the judgment in _**Rajeev v. District Labour officer (2010 (4) KLT 783) and Muhammed Kunju and Others v.**_ . _**District Labour Officer and others (WP(C) No.2959 of 2018)**_ 2. While considering the aforementioned judgments, the learned Single Judge on preponderance of the documents as well as the case law, held that the workers were already attached to the establishment and were also registered under the Kerala Shops and Commercial Establishments Act, 1960, thus permanent workers who are required to be registered. Learned Single Judge in paragraph 15 of **Writ Appeal No.175 of 2022** 3 the judgment, also gave a finding that even if the worker who is not engaged and intends to be engaged for an establishment and such application is submitted, the Board is required to give registration to that worker. The said finding was set aside by the Division Bench in the judgment rendered in **Kerala Headload Workers Welfare Board v. Nishad, 2022 (5) KLT 188** wherein in paragraph no.16 after analysis of all the case law ( _**Manzoor E. & Others v. District Labour Officer, Thiruvananthapuram, 2021(5) KHC 557, Rajeev v. District Labour officer (2010 (4) KLT 783)**_ , has given the final findings. The same reads thus: _“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, 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_ **Writ Appeal No.175 of 2022** 4 _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._ _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._ **Writ Appeal No.175 of 2022** 5 _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 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_ **Writ Appeal No.175 of 2022** 6 _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 scheme in the area concerned, as a registered but unattached worker.”_ 3. The contention of the Kerala Headload workers Welfare Board is that since the findings rendered in **Manzoor** ( _Supra_ ) has been disagreed, the writ petition is liable to be dismissed. 4. On the other hand, learned counsel appearing on behalf of the workers as well as the establishment submitted that the judgment **Writ Appeal No.175 of 2022** 7 under challenge contained two elements, one on the facts and the other, on the general law. The findings on the general law have been found not good in view of the Division Bench judgment, but as far as the facts placed on record before the authorities and before this Court, ie., Exts.P4 and P10 would show that the workers were not on need basis but were already employed and registered under the Kerala Shops and Commercial Establishment Act. 5. We have heard counsel for the parties and appraised the paper book. 6. The learned Single Bench in paragraph No.15 noticing all the other factors had given the following findings - “ _15. Thus, while considering an application for registration as a headload worker under Rule 26A of the Rules, the registering officers' look out is not whether the applicant was a headload worker or not, prior to such registration. As held in Rajeev v. District Labour Officer (2010 (4) KLT 783), the said provision has already been read down to mean that the look out for the registering officer must be only as to whether the applicant has the physique to be employed as a headload worker and also as to whether the employer is prepared to engage the applicant as headload worker. There is no requirement under law that the applicant must have been working under the employer as a headload worker for ” becoming eligible for such registration._ **Writ Appeal No.175 of 2022** 8 7. The above underlined quoted findings have been set aside by the Division Bench in paragraph No. 16 ( **Kerala Headload Workers Welfare Board v. Nishad)** supra. 8. Thus, we are of the view that the general directions given by the Single Bench have already been set aside and therefore do not need fresh interpretation by us. 9. As far as the case on merit is concerned, it would be appropriate for us to extract Ext.P10. The contents of the same read as under - _“FORM – B 11 (See Rule 2(c) Registration Certificate_ _Registration Certificate No. SH020100010365 Fees Rs 125/-_ _As regards the establishment mentioned hereinbelow, registration has been_ _granted/renewed as per the Kerala shops and commercial establishments Act, 1960 in the name of MANSOOR_ _This registration certificate will continue to be in force till 31st of_ _December._ _The name of the establishment: KEK CASHEW_ _The place of establishment : Uliyakoil North, KEK Cashew,_ _Mangad.P.O., Kilikolloor, Kollam_ _The name of the owner of the establishment : MANZOOR_ _The No. of employees: 11_ **Writ Appeal No.175 of 2022** 9 _Date: 9/8/2018 The seal and signature of the authority_ |_Date of_<br>_renewal_|_The amount remitted_<br>_for renewal_|_Date of expiry_|_The seal and_<br>_signature of the_<br>_authority_| |---|---|---|---| |_09/08/2018_|_125_<br>_(KL00 497 7558,_<br>_9/8/2018)_|_31/12/2018_|| |_15/05/2019_|_250_<br>_(KL00 18,466 1520_<br>_1920E, 15/5/2019)_|_31/12/2019_|_Signed and issued_<br>_by R.Sreekumar_<br>_(ALO, Kollam_<br>_2nd Circle) on_<br>_15/5/2019_| |_28/06/2021_|_1000_<br>_(KL003876230202122E_<br>_, 28/6/2021)_|_31/12/2021_<br>_(Seal)_|_This certificate_<br>_issues through_<br>_auto renewal_<br>_system_<br>_Sd/-_<br>_Assistant Labour_<br>_Officer, II Circle,_<br>_Kollam, Water_<br>_Authority_<br>_Building, Civil_<br>_Station West._| _(This certificate is digitally signed and does not require any seal/signature_ _in original)_ _Authenticity of the certificate can be verified at : -http.lc.kerala.gov.in For renewal or amendment please visit:- www.lc.kerala.gov.in”_ 9. These workers had already been working under the establishment and had registered under the Kerala Shops and Commercial Establishments Act, 1960. The alleged enquiry recorded in the impugned order by the Board, do not reflect any examination of records or particulars as to whether the employees working in the **Writ Appeal No.175 of 2022** 10 establishment were incidental or otherwise, ie., on regular employment or on need basis. The learned Single Bench on an analysis of the documents, in our considered view, has rightly arrived at a conclusion that the persons who are attached with the establishment required registration and this is what is containned in the _ratio decidendi_ culled out by the Division Bench. Considering the merits of the case, we find that the findings of the learned Single Bench _qua_ allowing the registration to the workers in the writ petition, do not suffer from any illegality and hence the writ appeal is dismissed. SD/- **AMIT RAWAL JUDGE** SD/- **C.S.SUDHA JUDGE** ak **Writ Appeal No.175 of 2022** 11 ## **APPENDIX OF WA 175/2022** |**RESPONDENTS ANNEXURES:-**|**RESPONDENTS ANNEXURES:-**| |---|---| |**ANNEXURE R1(A)**|**TRUE COPY OF THE PHOTOGRAPH OF TINS**| ||**WEIGHING 10 KG.**| |**ANNEXURE R1(B)**|**TRUE COPY OF THE PHOTOGRAPH OF THE POUCH**| ||**WEIGHING 20 KG.**| |**ANNEXURE R1(C)**|**TRUE COPY OF THE PHOTOGRAPH OF BAG**| ||**WEIGHING 50 KG.**| |**ANNEXURE R1(D)**|**TRUE COPY OF THE PHOTOGRAPH OF CARTONS**| ||**WEIGHING 20 KG .**| |**ANNEXURE R1(E)**|**TRUE COPY OF THE PHOTOGRAPH OF BOXES**| ||**WEIGHING 20KG.**|