Kunhabdulla Y.M and others v. District Labour Officer, Thavakkara, Kannur; Assistant Labour Officer, Thalassery; Kerala Headload Workers Welfare Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 19[TH] DAY OF JANUARY 2023 / 29TH POUSHA, 1944** **WP(C) NO. 37913 OF 2022** ## **PETITIONER/S:** 1 KUNHABDULLA Y.M AGED 47 YEARS, SON OF ALIKUTTY YOGIMADATHIL HOUSE, PO THOOVAKUNNU, THALASSERY 670 692, KANNUR DISTRICT., PIN - 670692 2 PURUSHOTHAMAN K AGED 46 YEARS SON OF ANANDAN, KOCHUNTAVIDA HOUSE, PO CHERUPARAMBA, THUVAKKUNNU, THALASSERY 670 693, KANNUR DISTRICT., PIN - 670693 3 ANSAR LASKAR AGED 32 YEARS SON OF MOMINAL LASKAR, PO TILPI, PS JOY NAGAR SOUTH, PARGANAS-743 337, WEST BENGAL., PIN - 743337 4 KERALA TRADERS TP 18/289C & 289D, THENDAPARAMBA, KADAVATHUR PO 670 676, KANNUR DISTRICT., REPRESENTED BY ITS MANAGING PARTNER, MUHAMMED V.P., AGED 33 YEARS, SON OF YOUSAF V.P., RESIDING AT VATTAPARAMBATH, CHERUPARAMBA PO, KANNUR 670 693., PIN - 670676 BY ADVS. B.ASHOK SHENOY AUGUSTINE M.A. P.S.GIREESH SALIH P.A. ARJUN R NAIK THEJALAKSHMI R.S. ## **RESPONDENT/S:** 1 THE DISTRICT LABOUR OFFICER OFFICE OF THE DISTRICT LABOUR OFFICER, THAVAKKARA, KANNUR 670 002., PIN - 670002 **WP(C) NO. 37913 OF 2022** **2** 2 THE ASSISTANT LABOUR OFFICER THALASSERY 2ND CIRCLE, KUTHUPARAMBA PO 670 643, KANNUR DISTRICT., PIN - 670643 3 KERALA HEADLOAD WORKERS WELFARE BOARD - KHWWB KANNUR DISTRICT COMMITTEE, RAJIV GANDHI ROAD, KANNUR670 001., REPRESENTED BY ITS CHAIRMAN., PIN - 670001 BY ADV K.S.ARUN KUMAR ## **OTHER PRESENT:** GP SRI JIMMY GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 37913 OF 2022** **3** ## **JUDGMENT** Petitioners 1 to 3 are attached headload workers employed exclusively in the 4[th] respondent's establishment for carrying out loading and unloading works. 4[th] petitioner is a partnership firm running their establishment engaged in the business of sale of cement, iron and steel and other allied products. 2. On 18.11.2022 separate applications in Form IX was submitted to the Assistant Labour Officer, Thalassery, Kannur for registration under the provisions of the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme 1983. 3. The 2[nd] respondent, Assistant Labour Officer after affording the opportunity and 3[rd] respondent, Kerala Headload Workers Welfare Fund Board vide order dated 18.5.2022, Ext.P1 rejected the application of the petitioners for registration on the ground that the establishment of 4[th] petitioner had not started functioning. Aggrieved against the same, statutory appeals under Section 26C of the Kerala Headload Workers Rules, 1981 were preferred which has been dismissed vide orders Ext.P2, P3 and P4 dated 13.9.2022 on the premise that it will affect the competitions amongst the other headload workers. 4. Learned counsel appearing on behalf of the petitioner **WP(C) NO. 37913 OF 2022** **4** submitted that the impugned observations of the appellate authority are wholly against the provisions of Article 14 of the constitution of India as well as the various judgments passed by this Court. In support of the aforementioned contentions has relied upon the Division Bench judgment of this Court in **Kerala Headload Workers Welfare Board v. Nishad M.B and others (2022 (5) KHC 367 (DB)** wherein it has been held that there cannot be any bar for attached headload workers with the company as they have a special skill to perform, for registration. 5. Learned counsel representing the Welfare Fund Board and Government Pleader opposed the prayer and submits that until and unless unit starts, the registration cannot be sanctioned. 6. I have heard the learned counsel for the parties and appraised the paperbook. 7. In the cited judgment, the Division Bench after considering the provisions of the Act and Rules framed thereunder, held as under: _**23.** Our analysis of the statutory scheme leads us to draw the following conclusions:_ _a. The definition of headloadworker 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._ **WP(C) NO. 37913 OF 2022** **5** _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 fact-finding 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._ _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_ **WP(C) NO. 37913 OF 2022** **6** _permanently employed by an employer or contractor’ ie. 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 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._ _**24.** On the facts of the instant case, we find that the applications for registration put in by the 9 workers of the writ petitioner have been rejected by the registering authority and the appellate authority on two grounds viz. (i) that the workers were not seen engaged in headload work on the date of inspection and (ii) that granting them registration would affect the employment opportunities of the existing registered pool workers in the area. In our view, while the second ground is_ **WP(C) NO. 37913 OF 2022** **7** _legally untenable and cannot be sustained, as rightly found by the learned single judge, the first ground is certainly one that the registering authority can take into account, along with other material that suggests that the applicants were not employed or engaged to do any headload work for the establishment in question, or even if so employed or engaged, the work of loading and unloading was not of predominant nature. Such an enquiry would be in line with the rights in connection with registration and employment of headload workers recognised by a Full Bench of this Court in Raghavan (Supra) that was affirmed on the said point by a larger Bench of this Court in Theresa Jose v. Sub Inspector of Police- [(2015) 1 KLT 485 (LB)]. Paragraphs 21 and 24 of the Full Bench judgment in Raghavan (Supra) read as follows:_ _“21. Yet another point raised before us was the case of workers employed in the establishments, who are doing the work of loading and unloading along with other duties. Learned counsel for the petitioners could contend that in such circumstances, the workers cannot be treated as headload workers coming under the definition of that term under the Act. We do not think that this is an issue where an answer in general can be given. It will depend on the facts of each case. If the worker is doing loading and unloading work regularly in the establishment, he cannot be taken out of the purview of the Act only for the reason that he is discharging some other duties also. On the other hand, if he is principally employed to carry on the work other than loading and unloading and if occasionally he does the work of loading and unloading, it may not be possible to treat him as a headload worker coming within the definition. But, as mentioned earlier, it will depend on the facts of each case._ _24. In the light of the above discussion, following principles can be deduced. (1) The provisions under Chapter III of the Act are applicable to all headload workers coming within the definition of the term under the Act. (2) The definition would take in both permanent workers attached to an establishment as also worker engaged in the establishment from time to time. But, workers engaged for domestic purposes are excluded. (3) The provisions of the Act would be applicable only to those headload workers who are engaged in establishments coming under the Schedule under S. 2(j). (4) All headload workers including permanent workers attached to establishments are liable to get registered under R. 26A. (5) In the areas where the Scheme is made applicable, no headload worker who is not a registered headload worker as per the Kerala Headload Workers Rule, shall be allowed or required to work in that area. It is also necessary that such headload worker shall get a registration under the_ **WP(C) NO. 37913 OF 2022** **8** _provisions of the scheme. But, a headload worker who is permanently employed by an employer or a contractor is not liable to get registration under the scheme. (6) An employer is bound to maintain registers and records in respect of every headload worker employed by him as per the provisions contained under R. 27 including supply of wage card to any headload worker. (7) It is open to the employer to engage his permanent headload worker attached to his establishment to do the loading and unloading work whether it is in an area where the Scheme is made applicable or not. (8) But, in an area where the Scheme is made applicable, if the employer requires additional workers, he has to get them through the committee formed under S. 18 and in accordance with the provisions of the Scheme. In an area where the Scheme is not made applicable, there is no such obligation on the part of the employer and he can engage workers of his own choice. But he will be bound to comply with the provisions of R. 27 in respect of such headload workers also. (9) If a headload worker permanently attached to an establishment is carrying on other work also, that, by itself, will not take him out of the definition of ‘headload worker’ under the Act. It will depend upon the nature of the principal engagement and that again has to be decided on the facts of each case.”_ _**25.** In the instant case, an enquiry on the lines indicated above was not done by the registering authority and further, it is the specific case of the learned counsel for the writ petitioner that on the date of the inspection the attached workers of the establishment were not permitted to engage in headload work on account of the insistence by the pool workers that only registered headload workers could be employed or engaged in an establishment situated in a scheme covered area. Under the circumstances while upholding the judgment of the learned single judge to the limited extent that it quashes the orders impugned in the writ petition, we set aside the judgment to the extent it lays down propositions by following the judgments in Rajeev (Supra) and Manzoor (Supra) and issues directions to the registering authority based thereon. The registering authority shall now consider the applications preferred by the nine workers of the writ petitioner afresh by ascertaining whether they are employed or engaged for doing headload work of a predominant nature in the establishment of the writ petitioner. He shall also take note of the specific case of the writ petitioner that the said workers were engaged/employed to do headload work that was earlier being done by pool workers in the area. The enquiry in this regard shall be completed, and orders passed on the applications for registration, within an outer time limit of six weeks from the date of receipt of a copy of this_ **WP(C) NO. 37913 OF 2022** **9** _judgment._ From the perusal of the aforementioned findings, the application for registration of the workers attached to the petitioner cannot be rejected on the ground that it would take away the livelihood of the pool workers attached to the trade union or unit had not started. For the reason aforementioned, the impugned orders of the appellate authority and that of the registering authority Exts.P1 to P4 are set aside. The writ petition is allowed. Respondent No.2 is directed to register the name of the petitioners and issue the cards within a period of 15 days from the date of receipt of a certified copy of this judgment. In the meantime, they are permitted to carry out the activity being an attached workers to the establishment of the petitioner No.4. Sd/- sab **AMIT RAWAL** **JUDGE** **WP(C) NO. 37913 OF 2022** **10** ## **APPENDIX OF WP(C) 37913/2022** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF ORDER NO.21/2022 DATED| |---|---| ||18.5.2022 PASSED BY 2ND RESPONDENT| ||ALONGWITH ITS TRUE ENGLISH TRANSLATION| |Exhibit P2|TRUE COPY OF ORDER NO.G(3)3685/2022 DATED| ||13.9.2022 PASSED BY 1ST RESPONDENT AND| ||ISSUED TO 1ST PETITIONER ALONGWITH ITS TRUE| ||ENGLISH TRANSLATION| |Exhibit P3|TRUE COPY OF ORDER NO.G(3)3684/2022 DATED| ||22.9.2022 PASSED BY 1ST RESPONDENT AND| ||ISSUED TO 2ND PETITIONER ALONGWITH ITS TRUE| ||ENGLISH TRANSLATION| |Exhibit P4|TRUE COPY OF ORDER NO.G(3)3683/2022 DATED| ||13.9.2022 PASSED BY 1ST RESPONDENT AND| ||ISSUED TO 3RD PETITIONER ALONGWITH ITS TRUE| ||ENGLISH TRANSLATION| |Exhibit P5|TRUE COPY OF AGREEMENT OF PARTNERSHIP DATED| ||13.12.2021 EXECUTED BY PARTNERS OF 4TH| ||PETITIONER| |Exhibit P6|TRUE COPY OF REGISTRATION CERTIFICATE UNDER| ||REGISTRATION NUMBER 32AAYFK2520P1ZV DATED| ||4.1.2022 ISSUED TO 4TH PETITIONER BY| ||ASSISTANT COMMISSIONER, COMMERCIAL TAX| ||OFFICE I CIRCLE| |Exhibit P7|TRUE COPY OF LICENCE NO.330/2022-2023/A-| ||3/2467/22 DATED 6.9.2022 ISSUED BY| ||THRIPRANGOTTUR GRAMA PANCHAYAT TO 4TH| ||PETITIONER ALONGWITH ITS TRUE ENGLISH| ||TRANSLATION| |Exhibit P8|TRUE COPY OF INTERIM ORDER 01.06.2021 IN| ||WP(C) NO.11654 OF 2021 BEFORE THIS HON'BLE| ||COURT|