Milas Enterprises v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY,THE 06TH DAY OF FEBRUARY, 2019/17TH MAGHA, 1940** **WP(C).No. 3135 of 2019 N** **PETITIONER:** **MILAS ENTERPRISES 30/1596 A-1, NARAYANAN ASAN ROAD, VYTTILA, ERNAKULAM 682 019, REPRESENTED BY ITS MANAGING PARTNER.** **BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SMT.PARVATHY KOTTOL SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM 695 001, KERALA.**| |**2**|**COMMISSIONER OF POLICE,**| ||**KOCHI CITY, ERNAKULAM, KOCHI 682 011, KERALA.**| |**3**|**DEPUTY SUPERINTENDENT OF POLICE (RURAL),**| ||**POWER HOUSE JUNCTION, SUB JAIL ROAD,**| ||**PERIYAR NAGAR, ALUVA, KERALA 683 101.**| |**4**|**THE SUB INSPECTOR OF POLICE,**| ||**KALADY POLICE STATION, KALADY MALAYATTOOR ROAD,**| ||**MEKALADY,**| ||**KALADY, KERALA 683 574.**| |**5**|**INTUC KANJOOR MANDALAM COMMITTEE,**| ||**KANJOOR PO,**| WP(C) NO.3135 OF 2019 :-2-: **REPRESENTED BY ITS PRESIDENT. PIN -683575** **ADDL.R6 THE KERALA HEADLOAD WORKERS WELFARE BOARD, HAVING ITS HEAD OFFICE AT SRM ROAD, ERNAKULAM NORTH,KALOOR, ERNAKULAM, KERALA-682018.** **ADDL.6TH RESPONDENT IS IMPLEADED AS PER ORDER IN IA NO.2/2019 DATED 06.02.2019.** **BY ADVS. ADDL.R6 BY SRI.S.KRISHNA MOORTHY, SC, KHWWB SMT.O.H.NAZEEBA** ## **OTHER PRESENT:** **SR.GP SRI.P.P.THAJUDEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD** **ON 06.02.2019, THE COURT ON THE SAME DAY DELIVERED THE** **FOLLOWING:** WP(C) NO.3135 OF 2019 :-3-: ## **JUDGMENT** ## **N.ANIL KUMAR,J:** The petitioner is a firm registered under the Indian Partnership Act, 1932 and is engaged in the wholesale distribution of biscuits and confectionery items to various parts of the country from 2015; along with its sister concern 'Pearl Marketing Services'. 2. The petitioner has preferred this writ petition under Art.226 of the Constitution of India seeking a direction to respondents 2 to 4 to afford effective and adequate police protection from any obstruction to its distribution activities or damages to its property. And, added to this, the petitioner seeks writ of mandamus directing respondents 2 to 4 to ensure that no protest takes place within a radius of 500 meters from the entrances of godown. 3. On 1.8.2018, the petitioner shifted its distribution activities from Vyttila, Cochin to Kanjoor, Aluva. According to the petitioner, the workers engaged by the petitioner at Vyttila are WP(C) NO.3135 OF 2019 :-4-: engaged at its godown at Kanjoor. On 29.1.2019, it is alleged that the fifth respondent by way of a letter demanded work for its members from 4.2.2019. According to the petitioner, Though the petitioner orally informed them that the firm at present does not have any work to allocate to any additional headload worker, the members of the fifth respondent were adamant on their demand and verbally threatened the firm's officers as well as other headload workers. Apprehending forceful obstruction on the part of the fifth respondent, the petitioner filed complaint before the fourth respondent informing him about the threat and illegal demand made by the fifth respondent. The petitioner apprehends that despite Ext.P3 complaint, the fourth respondent will not afford adequate police protection unless directed by this Court. Hence the petitioner is before us. 4. When the writ petition had come up for admission on 1.2.2019, this Court had directed the petitioner to implead the Kerala Headload Workers Welfare Fund Board in the party array to determine whether the petitioner's godown at Kanjoor is an WP(C) NO.3135 OF 2019 :-5-: area to which scheme framed under the Kerala Headload Workers Act,1978 applies. Resultantly, the petitioner filed an application to implead additional sixth respondent-Kerala Headload Workers Welfare Fund Board in the party array. However, petitioner received Ext.P4 order from the Assistant Labour Officer, Angamaly on 1.2.2019 allowing Ext.P1 application filed by the petitioner for registration of his workers as headload workers under Rule 26 of the Kerala Headload Workers Rules, 1981. Ext.P4 indicates that the area in which the petitioner carries out distribution activities is not a scheme covered area under the Act. Petitioner also received Ext.P5 identity cards dated 31.1.2019 issued to the workers of the petitioner by the Assistant Labour Officer, Angamaly under Rule 26A of the Kerala Headload Workers Rules,1981(for short 'the Rules'). 5. Learned senior counsel for the petitioner Sri.Nandakumar contended before us that the petitioner is having right to engage their own workers for the loading and unloading works in the area in which the petitioner carries out the business, which is not a WP(C) NO.3135 OF 2019 :-6-: scheme covered area as provided under the Rules. The learned senior counsel submits that the stand taken by the respondents 2 to 4 is untenable and they have no legal right to insist that the petitioner should do loading and unloading work through the headload workers in the area/pool. The learned senior counsel further submits that the petitioner has the fundamental right under Art.19(1)(g) of the Constitution of India to carry on any occupation, trade or business and the proposed protest and other similar activities of the fifth respondent and persons acting at its behest are an infringement of the fundamental right of the petitioner-company. 6. Heard the learned senior counsel for the petitioner, Sri.P.P.Thajudeen, the learned Senior Government Pleader and Sri.S.Krishna Moorthy, Standing Counsel for additional sixth respondent. 7. On going through Ext.P5, it is very clear that the place of godown does not come within the purview of scheme covered area. The provisions of the Scheme have not been extended to WP(C) NO.3135 OF 2019 :-7-: Kanjoor, Aluva. In view of the Full Bench decisions in v. **Raghavan Superintendent of Police** [1998(2) KLT 732] and in **Karunakara Kurup** v. **State of Kerala** [2004(1) KLT 215 (FB)], this Court held that in an area where the scheme is not applicable, the employer can engage any headload worker of his own choice. To put it differently, in an area where the scheme is not made applicable, the headload workers have no right to compel the employer to engage a headload worker who has got registration under Rule 26A of the Rules. In view of the above settled legal position, it has to be taken that the petitioner is entitled to engage workers of its choice. 8. Assuming for arguments sake, the area in which the petitioner carries out business is a scheme covered area, still the facts of this case would indicate that the petitioner is entitled to engage their own workers registered under Rule 26A of the Rules for the establishment. In the case on hand, the petitioner obtained Ext.P5 identity cards issued by the Assistant Labour Officer, Angamaly under Rule 26A of the Rules. In the decision reported WP(C) NO.3135 OF 2019 :-8-: 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 outside such area as it is for the establishment. A similar view was taken by this Court wherein it has been held that the permanent registered workers of the establishment have a right to perform duties attached with their jobs even outside the premises of the establishment. In **Pareeth** v. **Sub Inspector of Police** [2003(2) KLT 128], **A One Furniture** v. **Sub Inspector of Police** [2018(2) KLT 731], **Southern Agencies(M/s)** v. **Sub Inspector of Police, Thrippunithura and others** [2018(5) KHC 20], this Court held that the headload workers registered under Rule 26A cannot be compelled to have themselves reregistered in another place merely for the reason that their employer has started an additional place of work elsewhere. In other words, an “establishment” as defined under the Kerala Headload Workers Act,1978 can use their own registered workers in a different place even if the registration has been done by competent authorities at another place. ## 9. In the case on hand, as already indicated, the place of WP(C) NO.3135 OF 2019 :-9-: godown does not come within the headload workers pool and therefore they have no right under the Act to stake any claim. The petitioner has their own headload workers to conduct loading and unloading operations in accordance with Rule 26A of the Rules as well. In view of the various decisions of this Court, we are left in no doubt that the petitioner is entitled to carry on the loading and unloading works at Kanjoor with their own workers without any obstruction from respondents 6 and 7 or any other person thereunder. 10. On a consideration of the rival submissions made across the Bar, the writ petition is disposed of with a direction to respondents 1 to 3 to provide adequate and effective police protection to get the loading and unloading work in the business premises of the petitioner at Kanjoor. We make it clear that if there is any obstruction from respondents 2 to 4 or their supporters, respondents 1 to 3 shall take prompt and effective action to remove such obstruction for the smooth conduct of the petitioner's establishment. We also make it clear that the WP(C) NO.3135 OF 2019 **==> picture [24 x 8] intentionally omitted <==** directions in this judgment would apply as long as the area where the godown is situated is not a scheme covered area. In case the area, where the godown is situated, is declared as a scheme covered area in future, the petitioner is entitled to use the service of registered workers with identity cards issued under Rule 26A of the Rules. The Writ Petition is disposed of as above. Sd/- ## **P.R.RAMACHANDRA MENON** **JUDGE** Sd/- **N.ANIL KUMAR** **JUDGE** MBS/ WP(C) NO.3135 OF 2019 :-11-: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE APPLICATIONS FOR REGISTRATION OF HEAD LOAD WORKERS SUBMITTED UNDER RULE 26 OF THE KERALA HEADLOAD WORKERS RULES 1981 DATED 25.7.2018.** **EXHIBIT P2 A TRUE COPY OF THE LETTER DATED 29.1.2019 ISSUED BY THE 5TH RESPONDENT** **EXHIBIT P3 A TRUE COPY OF THE COMPLAINT DATED 30.1.2019 MADE BY THE PETITIONER TO THE 4TH RESPONDENT ON 31.1.2019.** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 31.01.2019 ISSUED BY THE ASSISTANT LABOUR OFFICER, ANGAMALY.** **EXHIBIT P5: TRUE COPY OF THE IDENTITY CARDS DATED 31.01.2019 ISSUED TO THE WORKERS OF THE PETITIONER BY THE ASSISTANT LABOUR OFFICER, ANGAMALY.**