Maniram Mandal and Others v. District Labour Officer and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** ## **WP(C) NO. 17181 OF 2020** ## **PETITIONERS:** > 1 MANIRAM MANDAL AGED 28 YEARS SON OF GOBINDA MANDAL, MANDAPUR, BABUPUR, MISHIPUR, MUDAPUR, GAZOLE, MALDA, WEST BENGAL-732 124. > 2 SHAMEEM.S., AGED 25 YEARS SON OF SALIM, SN MANZIL, KADAMBARA, POOZHANADU P.O., THIRUVANANTHAPURAM-695 125. > 3 SANTHOSH MANDAL, AGED 23 YEARS SON OF BHIKU MANDAL, KHEJURIYE GHAT, ROTIRAM TOLA, JAGANNATHPUR, KHEJURIAGHAT, MALDAH, WEST BENGAL-732 127. > 4 TAJAMUL SEKH, AGED 21 YEARS SON OF TAIMUR SEKH, SURYADIGHI KHORD BABUPUR, HATIMARI, MALDA, GAZOLE, WEST BENGAL-732 124. > 5 AL AMEEN.A., AGED 28 YEARS SON OF ANEEHSA, MOOLAMKODUVEEDU, POOZHANDU, OTTASEKHARAMANGALAM, THIRUVANANTHAPURAM-695 125. W.P(C)No.17181 of 2020 2 > 6 AJITH.N.J., AGED 20 YEARS SON OF JAYAN.C., ANJALI BHAVAN, MULAMMOODU, POOVACHAL P.O., VEERANAKAVU, THIRUVANANTHAPURAM-695 575. > 7 SAJEER.S., AGED 29 YEARS SON OF SHAMSUDEEN, EDAVILAKATHU PUTHEN VEEDU, PO0ZYAJAD8 P.O., THIRUVANANTHAPURAM-695 125. > 8 ANEESH.A., PROPRIETOR, LIYA TRADERS, XVIII/307, KATTEKKODE ROAD, KATTAKKADA, THIRUVANANTHAPURAM-695 572. BY ADVS. B.ASHOK SHENOY SRI.K.A.MANZOOR ALI SRI.P.S.GIREESH SRI.RIYAL DEVASSY SHRI.DR.ABHILASH O.U. ## **RESPONDENTS:** 1 THE DISTRICT LABOUR OFFICER OFFICE OF THE DISTRICT LABOUR OFFICER, THOZHIL BHAVAN, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033. DESIGNATION OF THE 1ST RESPONDENT - DISTRICT LABOUR OFFICER, CIVIL STATION, KOLLAM. (DESIGNATION OF THE 1ST RESPONDENT IS SUO MOTU CORRECTED IN LIEU OF THE 1ST RESPONDENT W.P(C)No.17181 of 2020 3 SHOWN IN THE WRIT PETITION AS PER ORDER DATED 20.08.2020 IN WP(C).) 2 THE ASSISTANT LABOUR OFFICER, OFFICE OF THE ASSISTANT LABOUR OFFICER, REVENUE TOWER, NEDUMANGAD P.O., THIRUVANANTHAPURAM-695 541. 3 KERALA HEADLOAD WORKERS WELFARE FUND BOARD, THIRUVANANTHAPURAM DISTRICT COMMITTEE, KAUSTHUBHAM COMPLEX, CHENTHITTA, THIRUVANANTHAPURAM-695 036, REPRESENTED BY ITS CHAIRMAN. 4 ADDL.R4. R.VIKRAMAN S/O.RAMANKUTTY, VYSHANAVOM HOUSE, KULATHINKARA DESAM, MYLAKARA P.O., THIRUVANANTHAPURAM DISTRICT, PIN CODE - 695 572 (POOL LEADER/CONVENER - BMS) 5 ADDL.R5. SREEKUMAR S/O.VELAYUDHAN, "KARTHIKA" HOUSE, KOTTAMPALLY DESAM, AMBALATHINKALA P.O., KATTAKADA, THIRUVANANTHAPURAM, PIN CODE - 695 572. (CONVENER - INTUC). 6 ADDL.R6. VASUDEVAN NAIR S/O.KESAVAN NAIR, "VASUDEVAM" HOUSE, KATTAKADA P.O., THIRUVANANTHAPURAM DISTRICT, PIN CODE - 695 572.. (CONVENER - CITU) [ADDITIONAL RESPONDENTS ARE IMPLEADED AS PER ORDER DATED 04.10.2021 IN I.A.NO.2/2020 IN WP(C)17181/2020.] BY ADVS. GOVERNMENT PLEADER SRI.THOMAS ABRAHAM V.P.PRASAD W.P(C)No.17181 of 2020 4 SRI.JUSTIN JACOB -SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING FINALLY HEARD ON 21.10.2021, THE COURT ON 29.10.2021 DELIVERED THE FOLLOWING: W.P(C)No.17181 of 2020 5 ## **BECHU KURIAN THOMAS, J** **-----------------------WP(C) NO. 17181 of 2020** _**--------------------------**_ **Dated this the 29[th] day of October, 2021** ## **JUDGMENT** Petitioners' applications for registration as head load workers in the establishment of the 8[th] petitioner was rejected by the registering authority under the Kerala Headload Workers Act, 1978. The appeal preferred by the petitioners 1 to 7 was also rejected and hence they have invoked the jurisdiction of this Court under Article 226 of the Constitution of India. 2. Petitioners 1 to 7 are permanent headload workers employed in, and attached to the establishment under the ownership of the 8[th] petitioner, by name 'Liya Traders'. The 8[th] petitioner's establishment is situated in an area covered by the scheme framed under the Act. The applications for registration were rejected on the ground that, if registration is granted to petitioners 1 to 7, it will prejudicially affect the work of existing headload workers who are already registered under the Kerala Headload Workers (Regulation of Employment & Welfare) Scheme, 1983 and the same will cause reduction in the income of the workers. The order rejecting the W.P(C)No.17181 of 2020 6 applications observed, rather mechanically, that, on enquiry, it was revealed that the employer was not keeping the required documents under the Act and its Rules and hence, the applications for registration were only to be declined. 3. Petitioners preferred an appeal before the Appellate Authority under Rule 25A of the Kerala Headload Workers Rule, 1981 (for short 'the Rules'). It was pointed out that registers under the Act were not liable to be maintained by the 8[th] petitioner since registration as a headload worker had not been obtained as of yet, for any of the petitioners under the Act and that since the applicants were willing to work as headload workers, and thir employer was ready to accept them as such, registration ought to have been granted. 4. The Appellate Authority however, by order dated 10.02.2020 rejected the appeal stating that loading and unloading works for 'Liya Traders' were carried out by workers from the pool, maintained by the Kerala Headload Workers Welfare Board and that the Board was always ready for supplying additional workers if required, for the establishment. This writ petition is preferred challenging the aforesaid order of the authority under the Act. 5. A counter affidavit has been filed on behalf of first respondent as well as the third respondent. It is pleaded in the said W.P(C)No.17181 of 2020 7 counter affidavit that granting registration to the petitioners will adversely affect the job of registered workers in the area who are attached to the Welfare Board and that the Registering Authority had issued orders declining the application based upon the objection raised by the third respondent- the Kerala Headload Workers Welfare Board. 6. The Welfare Board, on the other hand, pleaded that the entire loading and unloading work of the establishment of the 8[th] petitioner are being carried out by the registered workers of the Board and that the area being covered under the scheme, if the registration as sought for is granted, it will unduly affect the livelihood of the existing headload workers. 7. I have heard Adv. B. Ashok Shenoy, the learned Counsel for the petitoners, Adv. Sabeena P. Ismail, the learned Government Pleader, Adv. Thomas Abraham the learned Counsel for the third respondent and Adv. V.P.Prasad, the learned Counsel for respondent 4 to 6. 8. There is no dispute that petitioners 1 to 7 are working in the establishment of the 8[th] petitioner that too, as permanent workers. None has disputed the capacity of petitioners 1 to 7 to carry out loading and unloading works. Since, petitioners 1 to 7 had applied to be registered as headload workers and the fact that the 8[th] W.P(C)No.17181 of 2020 8 petitioner expressed his willingness to employ the petitioners 1 to 7 as headload workers in his establishment, is sufficient indication that petitioners 1 to 7 are capable of doing loading and unloading works. 9. The denial of registration by the second respondent is for the sole reason that if registration is granted to the petitioners, the same will affect the job opportunities of the headload workers attached to the Kerala Headload Workers Welfare Board. In my considered view, the reasons stated by the registering authority as well as the appellate authority to deny registration to petitioners 1 to 7 are perverse and not valid in the eyes of law. 10. The right of an employer to engage his own permanent employees as headload workers, in an area covered by the headload workers scheme, is subject to only one requirement- the employees must be registered as headload workers under the Act. This Court had in **Rajeev v. District Labour Officer,** 2010 (4) KLT 783 as well as in **Manzoor v. District Labout Officer,** 2021 (5) KLT 554 held, that while considering the application for registration as headload workers under Rule 26A of the Rules, the Registering Officer's look out is not whether the applicant was a headload worker or not prior to such registration, but whether the employer is willing to engage the applicant as a headload worker. It was further held that there was no requirement under law that the applicant must have been W.P(C)No.17181 of 2020 9 working in the establishment as a headload worker for becoming eligible for such registration. 11. In another decision in W.P.(C)No.6287 of 2021 **Prasanna Kumar v. District Labour Officer** , it was observed by this Court as follows: _7. In this context, it may be worthwhile to remind ourselves that every person has a fundamental right under Article 19(1)(g) to carry on any occupation and the same can be subjected only reasonable restrictions as provided for under Article 19(6). the work of loading and unloading is not a work that requires any specialised experience or technical or educational qualifications. Any person who is willing to do loading and unloading must have the freedom to do the said work unless it is curtailed by a reasonable restriction. The restriction that is introduced through the Act for doing headload work, in a scheme covered area, is the requirement of registration as headload worker. If the restriction of registration curtails the fundamental right of every individual to do headload work and the said restriction has to be constitutionally valid, without falling foul of Article 19(1)(g) and Article 14, then that restriction must be reasonable. If the restriction is not reasonable, it will create an unreasonable classification resulting in discrimination between those left out of the group and those included in the group of headload workers._ W.P(C)No.17181 of 2020 10 _Discrimination being the antithesis of equality, the whole Act itself may not stand the test of constitutionality. To avoid such a situation, the provisions of the Act relating to registration have been read down to mean willingness to do headload work with sufficient physique and employer's consent is sufficient to grant registration._ 12. The aforesaid decision clearly declared the right of an employee attached to an establishment to obtain registration as a headload worker under the Act and its Rules even in scheme covered areas. 13. When petitioners 1 to 7 have expressed their inclination to work as headload workers and even applied for registration, there is no legal justification, in the present case, to deny registration to petitioners 1 to 7, as headload workers under the Act and Rules. The reasons stated by the Registering Authority as well as the Appellate Authority to deny registration to petitioners 1 to 7, as mentioned earlier, are perverse and not valid in the eyes of law. The reduction of income or job opportunities of the existing headload workers is not a valid ground under law for denying registration to workers who are willing to do loading and unloading works. 14. In view of the above, Ext.P1 and Ext.P3 are liable to be set aside and it is held that petitioners 1 to 7 are entitled to obtain W.P(C)No.17181 of 2020 11 registration as headload workers, attached to the establishment of the 8[th] petitioner. Accordingly, there will be a direction to the second respondent to grant registration to petitioners 1 to 7 as headload workers attached to the 8[th] petitioner, and issue necessary identity cards as contemplated under Section 26A of the Kerala Headload Workers Rules, 1981, in a time bound manner within a period of one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. **BECHU KURIAN THOMAS JUDGE** AJ/29.10.2021 W.P(C)No.17181 of 2020 12 ## **APPENDIX OF WP(C) 17181/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF ORDER NO.958/2019 DATED 26.10.2019 PASSED BY 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF MEMORANDUM OF APPEAL FILED BY PETITIONER NO.1 TO 7 BEFORE 1ST RESPONDENT ON 11.11.2019. EXHIBIT P3 TRUE COPY OF ORDER NO.6940/2019 DATED 10.02.2020 PASSED BY 1ST RESPONDENT. EXHIBIT P4 TRUE COPY OF INTERIM ORDER DATED 13.09.2018 IN WPC NO.30083 OF 2018 BEFORE THIS HON'BLE COURT. EXHIBIT P5 TRUE COPY OF REGISTER OF EMPLOYMENT AND WAGES IN FORM V, MAINTAINED BY 8TH PETITIONER IN RESPECT OF PETITIONERS NOS.1 TO 7, UNDER RULE 27(1) OF KERALA HEADLOAD WORKERS RULES 1981, FOR THE PERIOD FROM 01.11.2019 TO 08.02.2020.