Mohammed Hinas and Others v. District Labour Officer, 1st Circle, Kannur; Registering Authority under Kerala Headload Workers Act and Rules; Assistant Labour Officer, 1st Circle, Talipparamba; Chairman, Kerala Headload Workers Welfare Board

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944 WP(C) NO. 8500 OF 2022** ## **PETITIONER/S:** 1 MOAHMMED HINAS AGED 27 YEARS RAUNAQ, KANNOTHUMCHAL,CHOVVA,KANNUR, PROPRIETOR, CORE STONE,RS 17 PARIPPAYI, POST CHENGALAYI. KANNUR DIST.KERALA, PIN - 670631 2 PRAKASH CHARPOTA AGED 33 YEARS 03 BHEELVAN ONE,SURPUR BANSWARA, RAJASTHAN, RS 17,CORE STONE, PARIPPAYI, POST CHENGALAI, KANNUR DIST. KERALA., PIN - 670631 3 KAMAL KISHOR PARMAR AGED 41 YEARS 02,KHABADI PAPDPA, KAPURA BEDANA, BANSWARA, RAJSTHAN, NOW RESIDING AT CORE STONE, RS 17, PARIPPAYI, POST CHENGALAYI. KANNUR DISTRICT, KERALA., PIN - 670731 4 TOLARAM GANAWA AGED 22 YEARS 07,THANDA BADIPADALM GHATOL PADALBARI, BANASWARA, RAJASTHAN, NOW RESIDING AT CORE STONE, RS 17, PARIPPAYI, POST CHENGALAYI. KANNUR DISTRICT, KERALA, PIN - 670631 5 NATAVAR MAKAVANA AGED 28 YEARS 03, BHILVAN SOORPUR, BANASWARA, RAJASTAN, NOW RESIDING AT CORE STONE, RS 17, PAIPPAYI, POST CHENGALAYI. KANNUR DISTRICT, KERALA., PIN - 670631 6 KISHOR P. GOPAL, AGED 35 YEARS PUTHEN PAPRAMBIL AMANAM PARIPPU, KOTTAYAM, NOW RESIDING AT CORE STONE RS 17, PARIPPAI, CHENGALAYI POST. KANNUR DISTRICT, KERALA., PIN - 670631 7 ANEESH.P.P. AGED 35 YEARS THAYAKKANDI HOUSE, ADUVAPPURAM, MALAPPURAM. NOW RESIDING AT CORE STONE, RS 17,PARIPPAYI, CHENGALAYI POST. KANNUR DIST. KERALA., PIN - 670631 8 ARUN.P.JOSE, AGED 28 YEARS PUTHAN PURAKKAL,CHAPARAPARAMBA, NEDIYANGA, SREEKANDAPURAM, NOW RESIDING AT CORE STONE, RS 17, PARIPPAYI, POST CHENGALAYI . KANNUR DISTRICT. KERALA., PIN - 670631 9 ARJUN KANPURA AGED 20 YEARS BADANA BANSWARA, RAJASTAN, NOW RESIDING AT CORE STONE, RS 17 PARIPPAYI, POST CHENGALAYI. KANNUR DISTRICT. KERALA., PIN – 670631 **WP(C) NO. 8500 OF 2022** **2** 10 AMARCHAND AGED 26 YEARS MEGALA PADA PADOLI RATHOR, BANSWARA, RAJASTAN, NOW RESIDING AT CORE STONE,RS 17, PARIPPAYI, POST CHENGALAYI, KANNUR DISTRICT, KERALA., PIN - 670631 11 KALESH CHANDR AGED 20 YEARS KANPURA, BADANA TEHSIL, GHATOL, BANSWARA, NOW RESIDING AT CORE STONE, RS 17, PARIPPAYI, POST CHENGALAYI, KANNUR DISTRICT, KERALA, PIN - 670631 12 KALESH CHANDR, AGED 20 YEARS KALESH CHANDR, KANPURA, BADANA TEHSIL, GHATOL, BANSWARA, RAJASTAN, NOW RESIDING AT CORE STONE, RS 17 PARIPPAYI, POST CHENGALAYI, KANNUR DISTRICT, KERALA., PIN - 670631 BY ADV T.ASAFALI ## **RESPONDENT/S:** 1 THE DISTRICT LABOUR OFFICER, 1ST CIRCLE, KANNUR, KERALA PIN -670003 2 REGISTERING AUTHORITY UNDER KERALA HEADLOAD WORKERS ACT AND RULES AND THE ASSISTANT LABOUR OFFICER, 1ST CIRCLE, TALIPARAMBA-670 141, 3 THE CHAIRMAN,KERALA HEADLOAD WORKERS WELFARE BOARD OFFICE OF THE KERALA LOAD WORKERS WELFARE BOARD,KANNUR, PIN - 670003 BY ADVS. THOMAS ABRAHAM P.M.PAREETH AISWARYA VENUGOPAL NAJEEB P.S THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 8500 OF 2022** **3** ## **JUDGMENT** Order dated 10.1.2022 of the District Labour Officer, Kannur exercising the appellate authority under the Kerala Headload Workers Act and Rules framed thereunder rejecting the registration of the petitioners under Rule 26A of the Rules has been assailed in the present writ petition. 2. Petitioner No.1 is the proprietor of a business establishment namely, 'CORE STONE' dealing with building materials Tiles, Granites, Marble, Sanitary ware, Water Tanks, Steel etc. and had been issued a licence under the Kerala Panchayat Raj Act. Since the petitioner No.1 is covered under the provisions of Kerala Headload Workers (Regulation of Employment and Welfare) Scheme 1983, an application on behalf of the petitioner No.2 to 11, the headload workers employed with the 1[st] petitioner for registration under 26A of the Rules was submitted but the same was erroneously rejected by the registering authority, respondent No.2, vide order Ext.P3 and the appeal filed was also dismissed, Ext.P4. It is contended that the sole reasoning granted in both the order is that the registration of the headload workers would effect the employment opportunities of the existing headload workers and those attached to the trade unions. In support of the aforementioned contentions has relied upon the Division Bench **WP(C) NO. 8500 OF 2022** **4** 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. 3. On the other hand counsel for the 3[rd] respondent, Kerala Headload Workers Welfare Board contested the aforementioned petition by alleging that the scheme was implemented in Chengalai area under the Sreekandapuram sub-committee of the Kannur District Committee on 17.10.2021. There are about 17 registered establishment under the board. In the scheme implemented area the registered head load workers of the pool for loading and unloading work for which work cards have been issued are being deployed. 4. In rebuttal it was argued that the petitioners establishment was registered with the board on 15.11.2021 and at present the pool workers are allowed to do the unloading work of tiles only in the petitioner's establishment. There are 5 registered workers under the pool. In order to increase the strength of the pool, application was submitted. The denial of work to the registered pool workers in a scheme implemented area would affect the livelihood of the registered pool workers. **WP(C) NO. 8500 OF 2022** **5** 5. I have heard the learned counsel for the parties and appraised the paper book. It would be appropriate to extract the reasoning assigned by the appellate authority in dismissing the appeal, Ext.P5. The same reads as under: It has been reported by the Asst.Labour Officer, Taliparamba in his order that the Chairman, Kerala Headload Workers Welfare Boaord, Kannur has objected the issuance of card under Rule 26A to the Appellants inasmuch as the Core Stone business establishment situates in a pool area. It is evident from the statements of the Appellants that there are 25A Card Holders working in the pool area where the Core Stone business establishment situates hence it is understood that if 26A cards are issued to 10 workers in an establishment it will result loss of job opportunities of other workers who are having 26A Cards in the area inasmuch as there are only very little number of business establishments doing loading and unloading operations in the area. Taking into consideration the above circumstances, in exercising the powers vested with me as the Appellate Authority under Rule 26C of the Kerala Headload Workers Rules, I hereby dismiss the appeal filed by Shri Prakash Charpota, Shri Kamal Kishore, Shri Tholaram Ganava, Shri Natwar Makvana, Shri Kishore P Gopal, Shri Aneesh P.P, Shri Arun. P Jose, Shri Arjun, Shri Amarchand and Shri Kailash Chandr. ## 6. 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_ **WP(C) NO. 8500 OF 2022** **6** ## _establishment._ _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_ **WP(C) NO. 8500 OF 2022** **7** _load worker, for being allowed or required to work in a scheme covered area, applied only to a ‘headload worker who is not 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_ **WP(C) NO. 8500 OF 2022** **8** _the employment opportunities of the existing registered pool workers in the area. In our view, while the second ground is 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_ **WP(C) NO. 8500 OF 2022** **9** _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 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_ **WP(C) NO. 8500 OF 2022** **10** _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 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. For the reason aforementioned, the impugned orders of the appellate authority and that of the registering authority Ext.P3 and P5 are set aside. The writ petition is allowed. Respondent No.2 is directed to register the name of the petitioner Nos.2 to 11 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.1. Sd/- sab **AMIT RAWAL** **JUDGE** **WP(C) NO. 8500 OF 2022** **11** ## **APPENDIX OF WP(C) 8500/2022** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE LICENCE ISSUED TO THE 1ST| |---|---| ||PETITIONER BY THE SECRETARY, CHENGALAI| ||GRAMA PANCHAYAT FOR RUNNING BUSINESS| ||ESTABLISHMENT BY NAME CORE STONE IN THE| ||BUILDING NO X/78F| |ExhibitP1(a)|TRUE ENGLISH TRANSLATION OF EXHIBIT P-1.| |ExhibitP2|TRUE COPY OF THE LICENCE ISSUED TO THE 1ST| ||PETITIONER BY THE SECRETARY, CHENGALAI| ||GRAMA PANCHAYAT FOR RUNNING BUSINESS| ||ESTABLISHMENT BY NAME CORE STONE IN THE| ||BUILDING NO.X/77A| |ExhibitP2(a)|TRUE ENGLISH TRANSLATION OF EXHIBIT P2| |Exhibit P3|TRUE COPY OF THE ORDER NO. H.L.63/72/2021| ||DT.7-12-2021 ISSUED BY THE 2ND RESPONDENT| ||REJECTING THE APPLICATION MADE BY THE| ||PETITIONERS NOS. 2 TO 11.| |Exhibit P3(a)|TRUE ENGLISH TRANSLATION OF EXHIBIT P3.| |Exhibit P4.|TRUE COPY OF THE APPEAL MEMORANDUM FILED| ||BY THE PETITIONERS AGAINST EXHIBIT P3| ||BEFORE THE 1ST RESPONDENT.| |Exhibit P5|TRUE COPY OF THE ORDER DT.10-01-2022 VIDE| ||NO.G(3)4839/2021 ISSUED BY THE 1ST| ||RESPONDENT.| |Exhibit P5(a)|TRUE ENGLISH TRANSLATION OF EXHIIBIT P5.| |RESPONDENT EXHIBITS|| |Exhibit R4(A)|TRUE COPY OF THE IDENTITY CARD DATED| ||06/10/2021 WITH REG. NO. CG/368 ISSUED BY| ||THE KERALA HEAD LOAD WORKERS WELFARE BOARD| ||ISSUED TO THE 1ST PETITIONER HEREIN| **WP(C) NO. 8500 OF 2022** **12** Exhibit R4(B) TRUE COPY OF THE IDENTITY CARD DATED 06/10/2021 WITH REG. NO. CG/367 ISSUED BY KERALA HEAD LOAD WORKERS WELFARE BOARD ISSUED TO THE 2ND PETITIONER HEREIN Exhibit R4(C) TRUE COPY OF THE JUDGMENT DATED 20/02/2020 IN W.P(C) 2694/2020 Exhibit R4(d) TRUE COPY OF THE RECEIPT DATED 31/01/2022 ISSUED BY THE BOARD FOR THE UNLOADING WORK IN ESTABLISHMENT OF THE FIRST WRIT PETITIONER (CORE STONES, REG. NO. 224) FOR AN AMOUNT OF RS.3970/-