M/S Bharath Marketing and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **THURSDAY, THE 9TH DAY OF NOVEMBER 2017/18TH KARTHIKA, 1939** ## **WP(C).No. 31659 of 2017 (F)** ## **----------------------------** **PETITIONERS :** - **---------------------** **1. M/S BHARATH MARKETING, DOOR NO.PM VII/47(6), THANNERPANTHAL, PATHAKKARA P.O., PERINTHALMANNA, MALAPPURAM DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, MR.N.MOHAMMED MUSTAFA.** **2. MUNEER ISMAYIL P., AGED 26 YEARS, S/O.ABDU RAHMAN, PUTHUKUDI HOUSE, PATHAIKKARA P.O., PERINTHALMANNA, MALAPPURAM DISTRICT-679322.** **3. VIGHNESH S., AGED 24 YEARS, S/O.MADHUSOODANAN, GOUREENKAL HOUSE, PATHAIKKARA P.O., PERINTHALMANNA, MALAPPURAM DISTRICT-679322.** **4. MUHAMMED FAROOQ K., AGED 27 YEARS, S/O.HAMZA K., KOLAKKADA HOUSE, PATHAIKKARA P.O., PERINTHALMANNA, MALAPPURAM DISTRICT-679322.** **5. GOPEEKRISHNAN P., AGED 42 YEARS, S/O.RAMAN NAIR, PUTHAN VEETTIL HOUSE, PATHAIKKARA P.O., PERINTHALMANNA, MALAPPURAM DISTRICT-679322.** ## **BY ADVS.SRI.DEVAPRASANTH.P.J. SMT.SMINI JOSE** ## **RESPONDENTS :** - **----------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO MINISTRY OF LABOUR, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **WP(C).No. 31659 of 2017 (F)** ## **---------------------------------------** **2. ASSISTANT LABOUR OFFICER, MINI CIVIL STATION, PERINTHALMANNA-679322.** **3. DISTRICT LABOUR OFFICER, CIVIL STATION, UP HILL, MALAPPURAM-676505.** **4. HEAD LOAD WORKERS WELFARE BOARD, REPRESENTED BY ITS CHAIRMAN, MALAPPURAM DISTRICT COMMITTEE, PERINTHALMANNA SUB COMMITTEE OFFICE, THARAYIL BUS STAND BUILDING, BY PASS ROAD, PERINTHALMANNA, MALAPPURAM DISTRICT-679322.** **5. HEAD LOAD AND GENERAL WORKERS UNION (CITU) REG.580/80,REPRESENTED BY ITS SECRETARY, PERINTHALMANNA AREA COMMITTEE, MALAPPURAM DISTRICT-679322.** **R1 TO R3 BY GOVERNMENT PLEADER SRI. MATHEW GEORGE VADAKKEL R4 BY SRI.THOMAS ABRAHAM, SC, R5 BY ADVS. SRI.V.P.PRASAD SRI.K.R.RAJKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 31659 of 2017 (F)** ## **---------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** - **EXHIBIT P1COPY OF DEED OF PARTNERSHIP DATED 29/01/2016.** - **EXHIBIT P2THE COPY OF THE CERTIFICATE OF REGISTRATION OF FIRST PETITIONER ISSUED FROM COMMERCIAL TAX DEPARTMENT DATED 09/08/2016.** - **EXHIBIT P3COPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT BEARING NO.112/2017 DATED 22/04/2017.** - **EXHIBIT P4COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT IN IR5371/2017 DATED 17/06/2017.** - **EXHIBIT P5COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT IN IR5372/2017 DATED 17/06/2017.** - **EXHIBIT P6COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT IN IR5373/2017 DATED 17/06/2017.** - **EXHIBIT P7COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT IN IR5374/2017 DATED 17/06/2017.** - **EXHIBIT P8COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE HIGH COURT IN WP(C)NO.25346/2017 DATED 11/08/2017.** - **EXHIBIT P9COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT BEARING NO.5371/2017(1) DATED 14/09/2017.** - **EXHIBIT P10THE REPLY GIVEN BY THE SECOND RESPONDENT UNDER RTI ACT DATED 19/07/2017 ALONG WITH THE COPIES OF THE OBJECTIONS FILED BY THE FOURTH AND FIFTH RESPONDENTS.** **RESPONDENT(S)' EXHIBITS :** **NIL.** **//TRUE COPY//** **P.A.TO JUDGE** **bp** **'CR'** ## **A.K.JAYASANKARAN NAMBIAR, J. ***************************************************************** W.P.(C) No.31659 of 2017** ******************************************************************* Dated this the 9[th] day of November, 2017** ## **J U D G M E N T** The 1[st] petitioner is a partnership firm that was constituted to start a wholesale and retail business in rice, vegetable oils etc. Apprehending that the day-to-day working of the establishment would involve loading and unloading work also on regular basis, the 1[st] petitioner identified petitioners 2 to 5 as workers who would be capable of doing head load work for the 1[st] petitioner establishment. With a view to getting them registered under the Kerala Headload Workers Act and Rules, the 1[st] petitioner along with the petitioners 2 to 5 preferred an application for obtaining registration for petitioners 2 to 5 as head load workers attached to the 1[st] petitioner establishment. The 1[st] petitioner also indicated his 'no objection' to the grant of registration under the Kerala Headload Workers Act and Rules to petitioners 2 to 5 as attached head load workers. The applications preferred by petitioners 2 to 5 were rejected by the Assistant Labour Officer (ALO), who was of the view that the grant of registration to the said petitioners would cause a law and order situation in the scheme covered area. Aggrieved by the said order of the ALO, petitioners 2 to 5 preferred -2- W.P.(C). No.31659 of 2017 an appeal before the Appellate authority, namely, the District Labour Officer (DLO), Malappuram, the 3[rd] respondent herein. The said appeals were also dismissed by toeing the same line of reasoning as the ALO, and citing the possible law and order situation as a reason for denying registration to the said petitioners. The petitioners therefore approached this Court through W.P.(C).No.25346/2017, challenging the orders passed by the ALO as also the DLO. By Ext.P8 judgment, this Court found that the rejection of the application submitted on behalf of petitioners 2 to 5 was for extraneous reasons, unconnected with the scheme of the Kerala Headload Workers Act and Rules, and therefore, quashed the impugned orders of the ALO and DLO, and the directed the DLO to pass fresh orders in the matter, after hearing the petitioners. Ext.P9 is the order passed by the DLO consequent to the directions in Ext.P8 judgment of this Court. In Ext.P9 order, the DLO once again rejects the applications preferred by petitioners 2 to 5 on the ground that the 1[st] petitioner had not produced any documents to establish that petitioners 2 to 5 were his regular employees. A reference is also made to documents that are required to be maintained by a registered employer under the Kerala Headload Workers -3- W.P.(C). No.31659 of 2017 (Regulation of Employment and Welfare) Scheme, 1983, to suggest that the 1[st] petitioner had not maintained the required documents under the said Scheme, in his capacity as an employer of petitioners 2 to 5. 2. I have heard Sri. Devaprasanth P.J., the learned counsel for the petitioners, Sri. Mathew George Vadakkel, the learned Government Pleader for the respondents 1 to 3, Sri. Thomas Abraham, the learned standing counsel for respondent 4 as also the learned counsel for the 5[th] respondent. 3. When the writ petition came up for admission before this Court, this Court, after hearing the respondents and taking note of the the prior orders passed by the ALO and DLO, passed an interim order dated 11.10.2017, directing the 2[nd] respondent to provisionally register petitioners 2 to 5 as head load workers in the 1[st] petitioner establishment, during the pendency of the writ petition. It is stated by the learned counsel for the petitioners that he has since been informed by the 2[nd] respondent that the provisional registration has been granted, although the necessary identity cards have not been issued to -4- W.P.(C). No.31659 of 2017 petitioners 2 to 5. 4. On a consideration of the facts and circumstances of the case and also the submissions made across the Bar, I find from a perusal of Ext.P9 order that the DLO, while passing orders pursuant to Ext.P8 judgment of this Court, does not comprehend the Scheme of the Kerala Headload Workers Act and Rules, as expounded by this Court in plethora of cases including a Full Bench decision in **Raghavan v. Superintendent of Police [1998 (2) KLT 732]** . As per the provisions of the above Act and Rules, the registration of a person as a Head load Worker is necessary for the purposes of identifying a worker, who, if discharging work in a scheme covered area, would be entitled to the benefits of the welfare schemes that have been floated by the Government for the benefit of said category of workers. Rule 26A of the Kerala Headload Workers Rules contemplates the registration of a worker for the purposes of the Act and Rules, and the procedure contemplated involves the filing of an application by the worker concerned, indicating the employer under whom he is working and whether or not the area is a scheme covered one. If the area -5- W.P.(C). No.31659 of 2017 where he is engaged in loading and unloading work is one that comes under the coverage of any particular scheme, then a notice has to be sent by the registering authority, not only to the employer indicated in the application, but also to the Local Committee office of the Welfare Fund Board. It is apparent therefore that in an application for registration, there is no requirement, more so, in the absence of any objection raised by an employer, for either the worker or the employer to establish that the worker in question is attached to the employer. So long as the worker claims to be attached to the employer in question, and the employer does not have any objection to the said claim, the registering authority has only to consider the application of the worker for registration, and if found to be satisfactory, grant him the registration sought for. Taking note of the previous round of litigation, this Court is disturbed by the stand taken by the 3[rd] respondent in the instant case, where undue importance is attached to a possible impact that any registration granted to petitioners 2 to 5 would have, on the income derived by pool workers in the scheme covered area in question. In my view, when a worker claims status as an attached worker, attached to any particular establishment, and applies for a registration as an -6- W.P.(C). No.31659 of 2017 attached worker to that establishment, then the pool worker cannot aspire for any work in the said establishment, where attached workers are employed. In that sense, therefore, a pool worker need not apprehend any loss of revenue on account of not being able to work in the establishment which has attached workers, since, that is not a premises where the pool worker can undertake any work as of right. I therefore, find that Ext.P9 order of the 3[rd] respondent is vitiated on account of a non-application of mind to the relevant factors that should have informed the 3[rd] respondent while considering an application for registration by attached workers. Resultantly, I quash Ext.P9 order, and finding that there is no other reason cited in Ext.P9 order to deny registration to petitioners 2 to 5, I direct the 2[nd] respondent to grant the necessary registration, under Rule 26A, to petitioners 2 to 5 so as to enable them to function as head load workers attached to the 1[st] petitioner establishment. The provisional registration granted to petitioners 2 to 5, pursuant to the interim order dated 11.10.2017, shall thus be regularised, and the said petitioners shall be issued with the necessary identity cards consequent to their registration under Rule 26A. The 2[nd] respondent shall do the needful in ensuring that the -7- W.P.(C). No.31659 of 2017 petitioners 2 to 5 are issued the necessary registration, as also identity cards, within a period of two weeks from the date of receipt of a copy of this judgment. The writ petition is disposed as above. **Sd/A.K.JAYASANKARAN NAMBIAR JUDGE** nkr/13.10.2017