Muhammad Kassim and Others v. Assistant Labour Officer, Ernakulam-11, Circle, Kochi-30

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941** ## **WP(C).No.12037 OF 2019(D)** ## **PETITIONERS:** - **1 MUHAMMAD KASSIM, AGED 55 YEARS, KOCHINGAM PARAMBIL,VADACANAL WARD, ALAPUZHA.** - **2 MRIDUL GAYARI, AGED 38 YEARS, MRIDUPATHAR.P.O, HOWRAGHAT.P.S, KARBI ANGLONG,ASSAM,NOW RESIDING AT DOOR NO.XL 8624, TD ROAD,ERNAKULAM.** - **3 PADUM BARO, AGED 32 YEARS, RAMESHUBURI, DONGPARI P.O., TAMULPUR PS, BAKSAR, ASSAM, NOW RESIDING AT DOOR NO.XL 8624, TD ROAD, ERNAKULAM.** - **4 JAYRAM BORO, AGED 35 YEARS, RAMECHUBURI, TAMULPUR P.S, BAKSAR, ASSAM, NOW RESIDING AT DOOR NO.XL 8624, TD ROAD, ERNAKULAM.** - **5 MENSWAR BASUMATARY, AGED 22 YEARS, NEAR LAHIL JYOTHI LP SCHOOL, AZARGURI VILLAGE, URIAMGHAT PS, DHANASIRI, GOLAGHAT, ASSAM, NOW RESIDING AT DOOR NO. XL8624, TD ROAD, ERNAKULAM.** - **6 JONASING ICHALARI, AGED 31 YEARS, LANGIN BAZAAR BLOCK-I, KARBI ANGLONG, ASSAM, NOW RESIDING AT DOOR NO. XL8624,TD ROAD, ERNAKULAM.** **BY ADVS. SRI.P.R.HARIKUMAR SRI.ANANTHU S. HARI** ## **RESPONDENT:** **ASSISTANT LABOUR OFFICER ERNAKULAM-11,CIRCLE,KOCHI-30.** WP(C).No.12037 OF 2019 2 ## **SRI. RON BASTIAN, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.12037 OF 2019 3 ## **JUDGMENT** The petitioners herein are engaged in loading and unloading of parcel goods in Alleppey Parcel Service, an establishment registered under the Kerala Shops and Commercial Establishment Act, 1960. The establishment comes under an area where the Headload Workers (Regulation of Employment and Welfare) Scheme, 1983, (‘The Scheme’ for short) has been implemented. Being attached workers they filed an application seeking issuance of a card under Section 26A of the Rules. Their application was initially rejected on the ground that their employer did not consent to the petitioners’ securing the 26A cards. The said order was challenged before this Court. The employer submitted before this Court that he has no objection and the matter was remitted back for fresh consideration by Exhibit P1 order. Later, by order dated 06.05.2019, their request was rejected on the ground that issuance of 26A cards to the petitioners would eat into the earnings of the headload workers working in pool area No.52 and thus would be detrimental to their interests. The said order is under challenge. 2. Sri.P.R.Harikumar, the learned counsel appearing for the petitioners submitted that the petitioners herein are attached workers and WP(C).No.12037 OF 2019 4 they would be working only within the precincts of the establishments of their employer. The unattached headload workers have no right to claim the work of a private establishment like Alleppey parcel service. It is pointed out that their employer had appeared before the respondent and had stated that he had no objection in granting 26A cards to the petitioners. This fact is also evident from Exhibit P1 judgment of this Court. In view of the above, the respondent has seriously erred in denying card to the petitioners, submits the learned counsel. 3. Heard the learned Government Pleader and I have considered the materials on record. 4. The copy of the order dated 06.05.2019 passed by the respondent has been produced by the learned Government Pleader. It is evident that registration was refused based on the objection raised by the representative of the Welfare Board. The reason for rejection is that grant of registration to the petitioners would be detrimental to the interest of headload workers in Pool Area No.52. 5. In **Muhammed Shafeek v. District Labour Officer[1]** , the question was whether when registration is granted to a fresh attached headload worker, the rights of unattached workers would be affected or not. It was observed thus by a learned Single Judge of this Court: 1 [2015 (1) KLT 314] WP(C).No.12037 OF 2019 5 As per sub-R.2 of R.26A, the Registering Authority is bound to issue notice in Form X to the employers or contractors from whom the headload worker claims work and in an area where the Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 is in operation, to the Chairman, Kerala Headload Workers Welfare Board Local Committee. Therefore, the persons who are entitled to a right of hearing in the matter of registration are either the employers or contractors or the Chairman of the Kerala Headload Workers Welfare Board. The Secretary or functionary of the union of headload workers who constitute the pool of unattached workers of the locality has not been conferred a right of hearing. Consequently, they also do not have any right to claim a right of appeal. To the above effect is the dictum in Jnana Prakasam v. Natarajan (supra) referred to above. It is only when registration is granted to a fresh, unattached headload worker that the rights of the other unattached headload workers are affected in any manner. The attached headload worker works within the precincts of the establishment of his employer. The unattached headload workers have no right under the Act to claim the work of a private establishment like that of the first petitioner. It is not in dispute that the first petitioner's establishment is a new establishment. Therefore, the unattached workmen also cannot have a claim that they have been discharging the work of the said establishment at any time. The above being the position, the Appellate Authority seriously erred in finding that the third respondent had a right of appeal against the registration granted to petitioners 2 to 5 as per Ext. P2. The said finding is therefore, set aside. 6. As held above, it is only when registration is granted to a fresh, unattached headload worker that the rights of the other unattached WP(C).No.12037 OF 2019 6 headload workers can be said to be affected in any manner. Attached headload workers, such as the petitioners, works within the precincts of the establishment of their employer. The employer had appeared before the respondent and had stated that he had no objection in issuing the cards to the petitioners. The unattached headload workers have no right under the Act to claim the work of a private establishment and therefore, it cannot be heard to contend that their earnings would be affected. In that view of the matter, I am unable to sustain the order passed by the respondent. The order dated 06.05.2019 in 35/2019 passed by the respondent is set aside. The respondent is directed to reconsider the application seeking issuance of card and pass appropriate orders expeditiously, at any rate, within 8 weeks from the date of receipt of a copy of this judgment. **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** sru WP(C).No.12037 OF 2019 7 ## **APPENDIX OF WP(C) 12037/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE JUDGMENT IN WP(C)32838/18 DATED 20.12.2018.** WP(C).No.12037 OF 2019 8