Madhu Cherian & Others v. District Labour Officer, Pathanamthitta & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 9[TH] DAY OF JANUARY 2024 / 19TH POUSHA, 1945** ## **WA NO. 355 OF 2020** ## **JUDGMENT DATED 28/01/2020 IN WP(C) 29507/2019 (K)** ## **APPELLANTS/PETITIONERS:** - **1 MADHU CHERIAN,AGED 45 YEARS MADAYADIYIL, KEEZHUKARA, KOZHENCHERRY P.O., PIN - 689641** - **2 PATHARSARH SURINA, PERMANENT EMPLOYEE, KURVILA AND CO. KOZENCHERRY NARANGANAM ROAD, OPP MUTHOOT CANCER CENTRE, KOZHENCHERRY P.O. PIN 689 641** - **3 JIJU SAMUEL, KUREEKKATTIL VALLIPURAYIDATHIL HOUSE, KOZHENCHERRY P.O., PIN 689 641** - **4 KURUVILA ZACHARIAH, AGED 47 YEARS S/O. LATE A.C. ZACHARIAH, PROPRIETOR, KURUVILA AND CO., NARANGANAM ROAD, OPP. MUTHOOT CANCER CETRE, KOZHENCHERRY P.O. VILLAGE AND TALUK, PATHANAMTHITTA DIST. PIN 689 641** - **BY ADVS. V.SETHUNATH V.R.MANORANJAN (MUVATTUPUZHA)** ## **RESPONDENTS/RESPONDENTS:** - **1 DISTRICT LABOUR OFFICER, PATHANAMTHITTA, PIN - 689645** - **2 ASST. LABOUR OFFICER, PATHANAMTHITTA, PIN 689 645** - **3 HEAD LOAD WORKERS WELFARE BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE, S.R.M. ROAD, KOCHI, PIN - 682 018** **BY ADVS. SC. KERLA HEAD LOAD WORKERS WELFARE BOARD. SR.G.P.T.K VIPINDAS K.SIJU** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.01.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Writ Appeal No. 355 of 2020 2 ## **AMIT RAWAL & C.S.SUDHA, JJ.** ## **-------------------------------------------------------** ## **Writ Appeal No. 355 of 2020** **---------------------------------------------------Dated this the 9[th] day of January, 2024** ## **J U D G M E N T** ## **Amit Rawal, J.** Interpretation of two judgments rendered by Full Bench and as well as the Larger Bench with regard to the registration of the workers as head load workers predominantly undertaking the task of loading and unloading with other occasional incidental works, whether would be a head load worker or not was the matter of consideration by relying upon the definition of the establishment defined under 2(j) read with Schedule containing item Nos.1 to 13 of the Head Load Workers Act,1978. 2. Full Bench in Paragraph 21 of **Raghavan v. Superintendent** ## **of Police, 1998 (2) KLT 732 (F.B.)** has held as under - _“ 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_ Writ Appeal No. 355 of 2020 3 _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."_ The Larger Bench in **Theresa Jose v. Sub Inspector of Police, Thoppumpady & Ors., 2015 (1) KLT 485 (L.B.)** while noticing other contentions, in paragraph 23 and 30, approved the findings rendered by the Full Bench which reads as under: _23. The Division Bench judgment in Obrin v. Sub Inspector of Police (2005 (3) KLT 861) was a case where it was contended that loading and unloading work carried in the industrial unit by the permanent workers was only incidental to the manufacturing process relying on the Full Bench judgment of Raghavan (supra) following was observed by the Division Bench in paragraph 5:_ _“5. Both sides have not disputed before us the above finding entered by the 3rd respondent. It is true that the petitioner has not challenged Ext.P3 order of the 3rd respondent rejecting the application for registration preferred by the workers of the petitioner. But the stand of the 2nd respondent Union as upheld in Ext.P3 order is that loading and unloading work in the Unit of the petitioner is only incidental to the main work of manufacture and therefore the permanent workers of the petitioner are only doing loading and unloading work occasionally. If so, it is paragraph 21 of the Full Bench_ Writ Appeal No. 355 of 2020 4 _decision reported in 1998 (2) KLT 732 (supra) that applies. The said paragraph reads 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.” (emphasis supplied)_ _The correctness of the above observation of the Full Bench was not canvassed before us by either side. Thus, in a case as the present, where loading and unloading work is only incidental to the main work of the industrial unit, the worker attached to the employer doing such loading and unloading work is not a headload worker and, therefore, the 1978 Act or the Rules or the Scheme do not apply to such worker. If so, the employer is not bound to engage a headload worker, much less, a registered head load worker of the 2nd respondent Union, for doing the loading and unloading work in the establishment where loading and unloading work is incidental to the main work. In other words, the 2nd respondent cannot put forward any right to_ Writ Appeal No. 355 of 2020 5 _engage its workers for the loading and unloading operations in the petitioner’s unit."_ _30. Paragraph 21 of the Full Bench judgment in Raghavan’s case (supra) has also stated that if principally, the workers are employed to carry on the work other than loading and unloading, and the loading and unloading work is only occasional, they do not come within the definition of headload workers. The Full Bench has also rightly observed that whether the nature of work of the headload worker is predominant work or not is a question which depends on the facts of each case. To the above extent we approve the observation made by Full Bench in paragraph 21.”_ 3. The case as set up by the petitioner before the Single Bench and before us is that he is dealing with hardware items where the workers employed for carrying on the activity some times/occasionally do the work of loading and unloading of items like iron rods and cement. It may be everyday or few days after. 4. The learned Single Bench by relying upon the _ratio decidendi_ culled out by the Full Bench in paragraph 21 of the judgment (supra) rejected the grievance of the petitioner whose registration for the employees as head load workers was rejected by the Registering Authority and the Appellate Authority. For the purpose of adjudication of the controversy as noticed above, it would be expedient to extract paragraph 21 of the decision of the Full Bench and paragraph 23 and 30 of the decision Writ Appeal No. 355 of 2020 6 of the Larger Bench which we have already extracted above. The definition of 'establishment' in 2(j) and described in the schedule attached thereto consisting of item no.1 to 13 are also relevant in this context, which read thus- _“(j) “establishment” means an establishment specified in the Schedule and includes the precincts thereof;_ _Schedule -_ _1. Iron and Steel markets or shops._ _2. Cloth and cotton markets or shops._ _3. Grocery markets or shops._ _4. Railway yards and goods sheds._ _5. Establishments employing workers for loading or unloading of goods and other operations incidental and connected thereto._ _6. Vegetable markets (including onions and potatoes markets)_ _7. Establishments employing workers for loading, unloading and carrying of foodgrains and such other work incidental and connected thereto._ _8. Bus stands, Boat jetties, landing places of conuntry crafts._ _9. Forest supply and safe coupes, timber and firewood depots._ _10. Quarries._ _11. Markets (including fish and meat markets) and factories employing workers, which are not covered by any other entries in this Schedule._ _12. Rubber, Tea, Coffee or Cardamom Plantations where workers are employed or engaged for loading or unloading timber or wooden logs in or from or to a vehicle, trolly or cart._ Writ Appeal No. 355 of 2020 7 _13. Establishments employing or engaging workers fro loading or unloading Liquefied Petroleum Gas Cylinders in or from, or to a vehicle.”_ 5. The predominant decision of the full Bench and the Larger Bench was with regard to item Nos.5, 7, 12 and 13 which on many reasons have raised doubt with regard to the activity of the head load workers indulging into the kind of jobs as enumerated therein. By taking the findings aforementioned, the case of the petitioner, in our considered view, would not be falling within item No.1 as the nature of the business concern therein is the sale of iron and steal whereas in the case of the petitioner, for the sake of repetition, a hardware store and loading and unloading of cement is only incidental. In our considered view, such workers, in view of the decision rendered by the Full Bench and upheld by the Larger Bench, would not be head load workers, the employer need not seek the registration of such persons under the provisions of the Act. This fact has also not been opposed by the learned counsel representing the Board. 6. At this stage, the learned counsel appearing on behalf of the appellants/petitioners submits that there have been not only one but innumerable incidents where if an employer like him is availing the duties of his workers occasionally for unloading and loading of the items as referred to above, being interfered by the unions and have to knock the 8 Writ Appeal No. 355 of 2020 door of the court for seeking police protection. So when situation do not warrant registration, but we cannot shut our eyes to the problems faced by the employers. Thus we hold that in order to prevent a perceptible threat which may occur at a subsequent time, a general direction is to be issued to the police to provide protection as and when such situation arises. We thus put a caveat that in view of the findings rendered by the Full Bench and Larger Bench, the employees working with the employer who are incidentally/occasionally carrying on the work of loading unloading, would not be falling under the definition of head load workers and do not require such registration. 7. Noticing the predicament, we deem it appropriate to issue directions to the SHO, Aranmula Police Station to provide police protection as and when such application is made at the instance of the appellants/petitioners when any occasion of disturbance by the Union leaders arises. Appeal stands disposed of. **Sd/-** **AMIT RAWAL JUDGE** **Sd/-** **C.S.SUDHA JUDGE** Jms