MUHAMMADALI O.K. and MUHAMMED MUSTHAFA and MUHAMMED SHAFEEQ S/O HAMZA v. DISTRICT LABOUR OFFICER PALAKKAD and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938** ## **WP(C).No. 32828 of 2015 (C)** ## **----------------------------** ## **PETITIONER(S):** ## **-------------** ## **1. MUHAMMADALI O.K.** **S/O.MUHAMMED O.K, ORAVAKKUZHIYIL HOUSE, MARAYAMANGALAM P.O., (VIA). NELLAYA, PALAKKAD - 679 335.** ## **2. MUHAMMED MUSTHAFA** - **S/O.YUSUF, OTTETH HOUSE, THOOTHA P.O. ANAMANGAD VIA. MALAPPURAM DISTRICT.** **3. MUHAMMED SHAFEEQ S/O.HAMZA, PALLATH HOUSE, KULAPPADA, MARAYAMANGALAM P.O.(VIA). NELLAYA, PALAKKAD - 679 335.** **BY ADVS.SRI.T.SETHUMADHAVAN (SR.) SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON** **RESPONDENT(S):** - **--------------** **1. DISTRICT LABOUR OFFICER PALAKKAD-679 603.** **2. ASSISTANT LABOUR OFFICER OTTAPPALAM, PALAKKAD DISTRICT-679 603.** - **3. THE CHAIRPERSON** **KERALA HEAD-LOAD WORKERS WELFARE FUND BOARD PALAKKAD DISTRICT COMMITTEE CHERPLASSERY SUB COMMITTEE, CHERPLASSERY PALAKKAD DISTRICT.** *** [ADDL.R3 IS IMPLEADED AS PER ORDER DATED 16/06/2016 IN I.A. NO.15882/2015]** **BY ADV. SRI.C.S. AJITH PRAKASH, SC, KHWWB BY SENIOR GOVERNMENT PLEADER SAIGY JOSEPH PALATTY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-08-2016, ALONG WITH WPC NO.32849/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 32828 of 2015 (C)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:-** **---------------------** |**EXT.P1**|**-**|**COPY OF THE APPLICATION SUBMITTED BY THE**| |---|---|---| |||**1ST PETITIONER BEFORE THE 2ND RESPONDENT DATED**| |||**17/10/2014.**| |**EXT.P2**|**-**|**COPY OF THE APPLICATION SUBMITTED BY 2ND**| |||**PETITIONER BEFORE THE 2ND RESPONDENT DATED**| |||**17.10.2014.**| |**EXT.P3**|**-**|**COPY OF THE APPLICATION SUBMITTED BY 3RD**| |||**PETITIONER BEFORE THE 2ND RESPONDENT DATED**| |||**17.10.2014.**| |**EXT.P4**|**-**|**COPY OF THE ORDER OF THE 2ND RESPONDENT**| |||**DATED 21.01.2015 REJECTING THE APPLICATION OF IST**| |||**PETITIONER FOR REGISTERING THE NAME AS**| |||**HEAD LOAD WORKER.**| |**EXT.P5**|**-**|**COPY OF THE ORDER OF THE 2ND RESPONDENT**| |||**DATED 21.01.2015 REJECTING THE APPLICATION OF 2ND**| |||**PETITIONER FOR REGISTERING THE NAME AS**| |||**HEAD LOAD WORKER.**| |**EXT.P6**|**-**|**COPY OF THE ORDER OF THE 2ND RESPONDENT**| |||**DATED 21.01.2015 REJECTING THE APPLICATION OF 3RD**| |||**PETITIONER FOR REGISTERING THE NAME AS**| |||**HEAD LOAD WORKER.**| |**EXT.P7**|**-**|**COPY OF APPEAL AND DELAY PETITION FILED BY**| |||**PETITIONERS ON 20.04.2015 BEFORE THE 1ST**| |||**RESPONDENT.**| |**EXT.P8**|**-**|**COPY OF THE ORDER OF THE 1ST RESPONDENT DATED**| |||**21.05.2015 DISMISSING THE APPEAL FILED BY THE**| |||**1ST PETITIONER.**| |**EXT.P9**|**-**|**COPY OF THE ORDER OF THE 1ST RESPONDENT DATED**| |||**21.05.2015 DISMISSING THE APPEAL FILED BY THE**| |||**2ND PETITIONER.**| |**EXT.P10**|**-**|**COPY OF THE ORDER OF THE 1ST RESPONDENT DATED**| |||**21.05.2015 DISMISSING THE APPEAL FILED BY THE**| |||**3RD PETITIONER.**| |**EXT.P11**|**-**|**COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND**| |||**RESPONDENT IN WP(C) NO.19417/2015 DATED 13.07.2015.**| |**EXT.P12**|**-**|**COPY OF THE JUDGMENT IN WP(C) nO.19391/2015 AND**| |||**WP(C) NO.19417/2015 DATED 27.07.2015.**| |**EXT.P13**|**-**|**COPY OF THE STATEMENT OF THE EMPLOYER DATED**| |||**11.09.2015.**| |||**[CONTD..]**| **WP(C).No. 32828 of 2015 (C)** **2** **EXT.P14 - COPY OF THE ORDER NO.HLA 7(A)/15C/4457/15 DATED 22.09.2015 ISSUED BY THE 1ST RESPONDENT.** **RESPONDENTS' EXHIBITS:- NIL** **---------------------** **//TRUE COPY//** **P.A. TO JUDGE** **sp** ## **K. VINOD CHANDRAN, J.** **---------------------------------W.P(C). Nos.32828-C & 32847-E of 2015 ---------------------------------Dated this the 08[th] day of August, 2016** ## **JUDGMENT** Petitioners are the employer and employee, who challenged the order passed in the applications made by the respective parties before the 2[nd] respondent under the Kerala Head Load Workers Act, 1978 [for brevity, the Act] and the Kerala Head Load Workers Rules, 1981 **.** [for brevity, the Rules] The applications were filed under Rule 26A of the Rules, which was rejected once by the 2[nd] respondent and the appeals were also rejected. Against which, both the employer and the proposed head load workers _W.P(C). Nos.32828-C & 32847-E of 2015_ **2** were before this Court. This Court, by Ext.P8 judgment produced in WP(C) No.32847/2015, directed a fresh consideration, which was made as per Ext.P10 produced in the said writ petition, which was impugned herein. 2. The rejection was made purely accepting the contentions of the Board, as is evident from Ext.P10, the reasoning in which is extracted hereunder: & “ 1. M/s.çùÞÏW Øíxàrí & ÌßWÁß¹í æÎxàøßÏrí ®K ØíÅÞÉÈJßW ¦ÆcÎÞÏß µÏxßùAí È¿JßæAÞ¿áJÄí Éâ{ßæÜ ºáÎGá æÄÞÝßÜÞ{ßµ{ÞÃí. 2. ¿ß ØíÅÞÉÈ¢ 2011 ¦·ØíxßW dÉÕVJߺîá Äá¿BßÏçÖ×¢ ÈÞ{ßÄáÕæøÏÞÏßGᢠÉâZ ¯øßÏÏßæÜ æÄÞÝßÜÞ{ßµ{áæ¿ ®ÄßVMí ÎâÜ¢ µÏxßùAí È¿KßGßÜï. 3. ²xMÞÜ¢ ¥ØßØíxaí çÜÌV ³ËàØùáæ¿ ¥çÈb×à ùßçMÞVGí dɵÞø¢ ¥çÉfµøÞÏ 3 æÄÞÝßÜÞ{ßµ{ᢠºáÎGá æÄÞÝßW æºÏîáKÕøÜï ®Kí çÌÞicæMGßGáIí. ¦ÏÄßÈÞW æø¼ßØíçdx×Èí ¥VÙøÜï ®Kᢠ¥çÉf ÈßøØßAæMGÄÞÏᢠ¥ùßÏߺîßGáIí. 4. M/s.çùÞÏW Øíxàrí & ÌßWÁß¹í _W.P(C). Nos.32828-C & 32847-E of 2015_ **3** æÎxàøßÏrí ®K ØíÅÞÉÈJßW µÏxßùAí È¿JáKÕøÞæÃKí ¥ÕµÞÖæM¿áK 3 æÄÞÝßÜÞ{ßµ {ÞÏ dÖàÎÞzÞV ÎáÙNÆÜß ².æµ, ÎáÙNÆí ×Ëà¶í, ÎáÙNÆí ÎáØñË ®KßÕV dÉØñáÄ ØíÅÞÉÈJßW µÏxßùAí È¿JßæAÞ¿áJá ®Ká æÄ{ßÏßAáKÄßÈí ºáÎGá æÄÞÝßÜÞ{ß ºG¢ 27 ¥ÈáØøߺîáU Îxí æÄ{ßÕáµ{ᢠçø¶µ{ᢠ©¿Îµç{Þ, æÄÞÝßÜÞ{ßµç{Þ ÙÞ¼øÞAßÏßGßÜï. 5. æºVMá{çÛøß, çµø{ ºáÎGá æÄÞÝßÜÞ{ß çfÎÈßÇß çÌÞVÁí ¼âÈßÏV ØâdÉIßæa æÎÞÝßÏÈáØøߺîí M/s.çùÞÏW Øíxàrí & ÌßWÁß¹í æÎxàøßÏrí ®K ØíÅÞÉÈJßW ÈÞ{ßÄáÕæøÏÞÏßGᢠ²øßAW ÎÞdÄÎÞÃí µÏxßùAí È¿KæÄKá¢, ¥ÄᢠÉâZ æÄÞÝßÜÞ{ßµ{ÞÃí æºÏñæÄKᢠÄßøߺîùßÏW µÞVÁßÈÞÏß ¥çÉfßºî ¼àÕÈAÞVAí dÉØñáÄ ç¼ÞÜß æºÏîáKÄßÈí ºáÎGáæÄÞÝßÜÞ{ßµ{áæ¿å®ÄßVMí ÎâÜ¢ ØÞÇߺîßGßæÜïKᢠÉâ{ßæÜ 23 æÄÞÝßÜÞ{ßµZAí ç¼ÞÜß µáùÕÞæÃKᢠØíµà¢ §¢ÉïßæÎaÁí ¯øßÏÏßW ¥xÞºîíÁí µÞVÁí ¥ÈáÕÆßAáKÄßÈí çÌÞVÁßÈí ÖµñÎÞÏ ®ÄßVMáæIKᢠ¥ùßÏߺîá.” 3. With respect to ground 1, the mere fact that at the inception the pool workers had conducted loading and unloading the work in the establishment would not confer any right to _W.P(C). Nos.32828-C & 32847-E of 2015_ **4** continue such work and would not fetter the right of the Management to have head load workers registered under Rule 26A of the Rules. Grounds 2 and 4 are mutually destructed in so far as while ground No.2 says that the proposed workers had never carried out any head load work in the establishment, due to the objection by the pool workers. Ground 4 presumes that the three workers, who have made applications under Rule 26A of the Rules were not engaged in loading and unloading work. The report of the Assistant Labour Officer, which was relied on in ground 3 was again to the effect that the workers are not head load workers. 4. It is to be emphasised that, there is no requirement that for registration under Rule 26A of the Rules, it should be proved before the authority that the workers so proposed to _W.P(C). Nos.32828-C & 32847-E of 2015_ **5** carry out loading and unloading work, were carrying on loading and unloading work in the establishment. Further, no loading and unloading work could be carried on in a pool area without registration under Rule 26A of the Rules. 5. The learned Standing Counsel appearing for the Board would submit that there was no document produced to prove that they were the employees of the Management establishment. Herein, the declaration made in Ext.P8 has to be noticed. There also the argument of the State that on enquiry, it was revealed that the proposed workers are not head load workers, was specifically rejected. It was found that since there is no dispute between the employer and the three workers, the 2[nd] respondent ought to have allowed the applications submitted by _W.P(C). Nos.32828-C & 32847-E of 2015_ **6** them. The Management accepts the employment of the petitioners in WP(C) No.32828 of 2015 and hence there can be no contention raised against such employment. 6. Further, it is to be noticed that even going by the Counter Affidavit filed by the State in WP(C) No.32828/2015, it is specifically averred in paragraph 3 that 'the petitioners are workers of the Royal Steels and Building Materials, Kacherikunnu, Cherpulassery P.O., Palakkad District'. The argument of the learned Standing Counsel for the Board that the rejection was made only since the Management and the workers failed to produce any evidence as to they being regularly employed in the establishment is not reflected in Ext.P10 order. It is trite that when an order is passed and the same is subjected to challenge, the _W.P(C). Nos.32828-C & 32847-E of 2015_ **7** authority, who passed the order cannot substitute the grounds, which are not available in the order, by way of Counter Affidavit or by arguments addressed before Court. 7. Ground 5 specifically indicates the Junior Superintendent of the Board having deposed that the proposed workers were unable to carry out loading and unloading work in the establishment, only for reason of the objection raised by the pool workers. It is also averred that since there are 23 pool workers and there is no sufficient work available to them, there could be no registration made. This cannot be a ground on which an application for registration under Rule 26A to be rejected. The same is evident in the decisions of this Court in **Majeed M. v. District Labour Officer, Palakkad and Others [2015 KHC 2400], Muhammed Shafeek** _W.P(C). Nos.32828-C & 32847-E of 2015_ **8** **and Others v. District Labour Officer, Palakkad and Others [2015 (1) KHC 550** and **Alfred Thomas v. State of Kerala and Others [2015 (5) KHC 275].** In the circumstances stated above, it is directed that the petitioners in WP(C) No.32828 of 2015 be issued registration under Rule 26A of the Rules within two weeks from the date of receipt of a certified copy of this judgment. Both the writ petitions are allowed. No costs. Sd/- ## **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/08/08/16