Kerala Roadways (P) Ltd. v. Manakkad Chandrrankutty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940** **WP(C).No. 2073 of 2019** ## **PETITIONER:** **KERALA ROADWAYS (P) LTD., REPRESENTED BY ITS LEGAL OFFICER R.MOHAN KUMAR, S/O.RAVINDRAN PILLAI, AGED 57 YEARS, AREA OFFICE, ARYASALA JUNCTION, TRIVANDRUM.** **BY ADVS. SRI.T.V.GEORGE SMT.LINDA GEORGE SRI.JIMMY GEORGE (THADATHIL)** ## **RESPONDENTS:** - **1 MANAKKAD CHANDRANKUTTY, GENERAL SECRETARY, ALL KERALA CHUMATTUTHOZHILALI CONGRESS (INTUC), VADAKKENADA, FORT P.O., TRIVANDRUM, PIN-695023.** - **2 P.S.NAIDU, SECRETARY, ALL KERALA HEAD LOAD WORKERS UNION (AITUC), MOSQUE LANE, THAMBANOOR, TRIVANDRUM-695001.** - **3 K.KRISHNANKUTTY, SECRETARY, KAMALESHWARAM MEHALA AREA, HEAD LOAD AND GENERAL WORKERS UNION (CITU), KAMALESHWARAM MEHALA, MANAKKAD P.O., TRIVANDRUM-695009.** - **4 COMMISSIONER OF POLICE, TRIVANDRUM CITY, TRIVANDRUM-695001.** - **5 ASST. COMMISSIONER OF POLICE, SHANGUMUGHAM PO, TRIVANDRUM-695001.** WP(C) NO.2073 OF 2019 :-2-: **6 C.I.OF POLICE, POOTHURA, TRIVANDRUM DISTRICT-695309.** **BY ADVS. R1 TO R3 SRI.GOPAKUMAR R.THALIYAL SRI.M.S.VIJAYACHANDRAN BABU** ## **OTHER PRESENT:** **SR.GP SRI.P.P.THAJUDEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.02.2019, THE COURT ON THE SAME DAY DELIVERED THE** **FOLLOWING:** WP(C) NO.2073 OF 2019 :-3-: ## **WP(C) NO.2073 of 2019** ## **J U D G M E N T** ## **N.ANIL KUMAR,J:** M/s.Kerala Roadways(P) Ltd. is a private limited transport company with its head office at Chennai and branches all over India including the one at Poonthura -Paruthikkuzhi area. This is a transshipment hub branch placed in an area of 61 cents of land wherein an 8000 Sq.ft. godown is situated. 2. The petitioner has preferred this writ petition under Art.226 of the Constitution of India seeking for a direction to respondents 4 to 6 to afford adequate and effective police protection to the petitioner-company, its employees and properties from the illegal attacks of respondents 1 to 3 and their men. And, added to this, the petitioner seeks for a writ of mandamus directing respondents 4 to 6 to afford adequate and effective police protection to the petitioner/company to continue its business from the illegal attacks of respondents 1 to 3 and their men. WP(C) NO.2073 OF 2019 :-4-: ## 3. Briefly put, the facts are hereinbelow:- The petitioner's Paruthikuzhi branch has been functioning with four labourers attached with the petitionercompany and also five labourers of unions taking turns. Pursuant to the demand made by the unions, in the year 2017, an agreement was arrived at between the petitioner and the unions evidenced by Ext.P4 mutually agreeing to continue nine labourers that is, four labourers attached with the petitioner plus five labourers of unions taking turns. In the morning of 21.12.2018, respondent unions from Paruthikuzhi area came to the petitioner company and stalled their loading and unloading work. They also issued Exts.P1 and P2 demand letters compelling the petitioner to file Ext.P3 complaint before the fourth respondentCommissioner of Police, Thiruvananthapuram City. Later, conciliation talk was held on 29.12.2018 in the Office of the fifth respondent and it was agreed to continue the status quo for the time being. According to the petitioner, discussions were again conducted on 11.1 2019 and 18.1.2019 before the District Labour WP(C) NO.2073 OF 2019 :-5-: Officer. Although several discussions were held, no positive result was achieved. It is alleged that pursuant to the failed meetings before the Assistant Labour Officer and District Labour Officer, respondents 1 to 3 have threatened the petitioner that they will not allow continuation of trade operations by the petitionercompany in the premises unless the labourers are put to work by the petitioner-company. Although several complaints have been raised before the respondents 4 to 6, they have refused to interfere in the matter and are adopting a negative attitude. Hence, the petitioner is before this Court. 4. First respondent filed counter affidavit for and on behalf of respondents 2 and 3 as well. It is contended that the respondents-unions represent 28 headload workers having identity cards issued by the Assistant Labour Officer, Kazhakkuttam for doing loading and unloading work in Pallitheruvu unit in Paruthikuzhi, Thiruvananthapuram. Respondents admitted that petitioner-establishment was initially having a branch and a godown at Chalai, Thiruvananthapuram WP(C) NO.2073 OF 2019 :-6-: within the area of operation of Pallitheruvu unit in 2016. They also admitted that the petitioner engaged four employees working in Chalai in the new branch at Pallitheruvu for assisting the work relating to stacking of goods unloaded by the headload workers belonging to the respondents-unions. According to them, there was an informal understanding that those four employees will be withdrawn when the headload workers were experienced in stacking the goods, but the petitioner did not withdraw those four employees and restricted the entry of 28 headload workers by limiting five workers on each day. Respondents-unions, therefore, represented before the management of the first respondent and submitted Exr.R1(f) representation for intervention before the Assistant Labour Officer, Kazhakkuttam. It is further contended that the petitioner has not produced documents to prove that the attached workers are having 26A cards noting their place of work as Kerala Roadways (P).Ltd. It is also contended that the District Labour Officer neither settled the matter nor has he issued an order under Section 21(4) of the WP(C) NO.2073 OF 2019 :-7-: Kerala Headload Workers Act, 1978 (for short 'the Act') after hearing the parties and the matter is still pending before the District Labour Officer for further negotiation and decision. 5. One of the contentions urged by the learned counsel for the petitioner is that despite the District Labour Officer glaringly making the party respondents to understand that they are not legally entitled to seek work in the petitioner- company as they belong to a different circle, the respondents Union are still obstructing loading and unloading works done in the premises which has been well-demarcated with boundary walls. The learned counsel for the petitioner further emphasized that the workers presently employed in the petitioner-company have been issued with 26A cards by the Assitant Labour Officer, Kazhakkuttam II Circle and the petitioner company is located within the jurisdiction of the Labour Officer, I Circle, which is a different one. Hence, it is contended that the respondents-unions have no right to demand work in the petitioner's premises and the petitioner-company is not legally obliged to employ them either. WP(C) NO.2073 OF 2019 ## :-8-: After hearing the matter to a certain extent, we think it is just and proper to implead suo motu the District Labour Officer, Thiruvananthapuram as the additional seventh respondent in this petition. Accordingly, the District Labour Officer, Thiruvananthapuram is impleaded as additional seventh respondent. The learned Senior Government Pleader takes notice for the additional seventh respondent as well. 6. Heard Sri.T.V.George, the learned counsel appearing for the petitioner, Sri.Gopakumar.R.Thaliyal, the learned counsel appearing for respondents 1 to 3 and Sri.P.P.Thajudeen, the learned Senior Government Pleader appearing for respondents 4 to 6 and additional seventh respondent. 7. In Ext.P5, the District Labour Officer, Thiruvananthapuram has clearly stated that Rule 26 A Card was issued to the attached workers of the petitioner long back by the Asst.Labour Officer, Kazhakuttam. However, the Branch Office is currently situated within the jurisdiction of the Assistant Labour Officer, First Circle. Hence, the fact that the attached workers of the petitioner WP(C) NO.2073 OF 2019 :-9-: are doing loading and unloading work in the premises on the strength of Rule 26A card issued by the Assistant Labour Officer, Kazhakuttam is admitted. The petitioner is having right to engage their own workers for the loading and unloading works in accordance with Rule 26A of the Kerala Headload Workers Rules, 1981 (for short 'the Rules') and the headload workers, who hold identity cards under Rule 26A cannot be denied employment on account of the shifting of the business from one place to another. There is also no stipulation in the rules that the registered workers should take fresh registration if their employer shifts the establishment to a new place. Hence, the stand taken by the Unions is untenable and they have no right to insist that the petitioner should give loading and unloading work to the headload workers suggested by them. In the decision reported in **Eastern Condiments (P) Ltd.** v. **Sub Inspector of Police** [2012(3) KLT 58], it has been held that as long as there are permanent headload workers for the establishment, irrespective of the area to which they belong to, they can carry on the works WP(C) NO.2073 OF 2019 ## :-10-: outside such area as it is for the establishment. 8. Ext.R1(a) and R1(b) identity cards issued under Rule 26A of the Rules would show that the area, where the worker normally works, is different from the one where the petitionercompany is situated. There is no case for the respondents-union that the establishment is situated within the area of operation of the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 and as such, the petitioner is obliged to engage workers from the pool for the work in the establishment. 9. Petitioner states that the headload workers employed by him in the newly shifted branch at Paruthikuzhi is a registered worker under Rule 26A of the Rules. Per contra, the party respondents contended that the headload workers employed by the petitioners are not registered or attached workers as per Rules. 10. Rule 26A of the Rules inter alia provides that any headload worker may submit his application for registration in Form No.IX to the Registering Authority concerned, with as many additional copies as there are employers or contractors from WP(C) NO.2073 OF 2019 ## :-11-: whom he claims to work. After considering the objection, if any, and after giving an opportunity of being heard, the Registering Authority shall register the name of the headload worker in the Register of Headload Workers, on being satisfied that the headload worker is eligible for registration and communicate the fact to the parties within two weeks of such registration. As per Rule 26(3) of the Rules, the Registering Authority shall then issue identity card to the registered headload worker in Form No.XI and if the name is not registered, the Registering Authority shall communicate the fact to the applicant with reasons therefor. 11. Clause 6 of the Scheme provides that no headload worker who is not a registered headload worker under Rule 26A of the 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 the area. From the date of commencement of the functional operation of the Scheme in any area, no headload worker who is not permanently employed by an employer or contractor shall be allowed or required to work in WP(C) NO.2073 OF 2019 :-12-: any area to which the Scheme applies unless he is granted further registration under the provisions of the Scheme. Clause 6A of the Scheme provides registration of headload worker under the Scheme and at the commencement of the Scheme, in any area a headload worker, who is not permanently employed by an employer or contractor and who is registered under Rule 26A of the Rules may submit his application in Form A to the Convener of the Committee concerned for registration in the Committee under the Scheme along with two passport size photographs. On receipt of an application for registration as above, the Convener of the Committee or an officer authorised by him in this behalf shall verify the application with reference to the registration granted as per Rule 26A of the Rules and after such enquiry as the Convener may deem fit and after giving the applicant an opportunity of being heard, may on his being satisfied that the applicant is eligible for registration under the Scheme, grant such registration to him by registering his name and particulars in the “Register of the Headload Workers Committee” in Form D, and WP(C) NO.2073 OF 2019 :-13-: communicating the fact of the registration to the applicant in writing. Clause 7 of the Scheme mandates that every employer in the area who engages or employs headload workers in or for an establishment for trade or business either directly or through a contractor shall register their names with the Committee along with such details and in the manner as may be specified by the Board within thirty days from the date of commencement of the functional operation of the Scheme in an area or within such further time, that may be allowed by the Committee not exceeding 45 days. Note appended to clause 7 of the Scheme enables an employer in the Scheme area, who employs headload workers on a permanent and regular basis by maintaining the register of employment and wages in Form No.V of the Kerala Headload Workers' Rules, 1981 shall be exempted from the registration under para 7, if such employer produces sufficient proof that he keeps all records in respect of such permanent headload workers as stipulated in the Kerala Headload Workers (Attached Group) Welfare Scheme, 1995 employed in the WP(C) NO.2073 OF 2019 :-14-: establishment and if he does not require the services of the headload workers covered in this Scheme. Thus, it is very clear that registration under clause 7 is required only if the employer wants to engage pool workers and not if he employs his own permanent attached headload workers. 12. In the case on hand, there is no contention that the area where the party respondents work is a scheme covered area. Para 8 of the scheme mandates that every registered headload worker, to whom registration has been granted by the Convener of the Committee shall work only in the area per allotment made by the Committee. As stated earlier, the petitioner has not produced any document to show that the four workers employed by the petitioner are attached workers, who obtained identity card under Rule 26A of the Rules. Similarly, the five workers of union are taking turns to whom identity cards are alleged to have issued under Rule 26A has been issued with reference to the area where the establishment of the petitioner is actually situated is a matter which requires examination by the competent authority under the WP(C) NO.2073 OF 2019 :-15-: Rule and Scheme framed thereunder. There is also no evidence to - show that the Scheme is extended to the area where the petitioner establishment is situated. Merely on the strength of Rule 26A card the unions have no right to claim employment in the - petitioner establishment. 13. When the case came up for consideration before this Court on 28.1.2019, learned counsel for the private respondents submitted that there is no forcible obstruction in any manner with regard to the work sought to be performed by the petitioner. Taking into consideration of the submission, as stated above, the parties are required to maintain status quo prevalent, that is, four labourers attached plus five labourers of union taking turns in the petitioner establishment until the matter is adjudicated by the competent authority under the Act and Rules and the Scheme framed thereunder. Admittedly dispute is pending before the competent authority in this regard. Until a decision is taken in accordance with law, the sixth respondent is directed to provide adequate and effective police protection to the petitioner company WP(C) NO.2073 OF 2019 :-16-: and its employees and properties from the illegal threat of respondents 1 to 3 and their men. The writ petition is thus disposed of. Sd/- **P.R.RAMACHANDRA MENON** , JUDGE sd/- **N.ANIL KUMAR** , JUDGE MBS/ WP(C) NO.2073 OF 2019 :-17-: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE DEMAND LETTER DATED 24.12.'18 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE DEMAND LETTER DATED 24.12.'18 WAS ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3** **TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER COMPANY OFFICIAL BEFORE THE 4TH RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 29.12.'18 ISSUED BY THE 5TH RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 18.01.'19 AT THE OFFICE OF THE DLO.** **EXHIBIT P6 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER COMPANY BEFORE THE 4TH RESPONDENT.** ## **RESPONDENTS' EXHIBITS:** Ext.R1(a): True copy of the identity card issued to headload worker. Ext.R1(b): True copy of the identity card issued to headload worker. Ext.R1(c): True copy of the passbook of scattered worker. Ext.R1(d): True copy of the passbook of scattered worker. Ext.R1(e): True copy of the representation dtd.25.10.2018 submitted to the petitioner. Ext.R1(f): True copy of the representation dated 27.10.2018 submitted to the Assistant Labour Officer, Kazhakuttom. Ext.R1(g): True copy of the representation dated 22.01.2019 submitted to the City Police Commissioner, Thiruvananthapuram.