Muhammed Niyaz T.A. v. Assistant Labour Officer, District Labour Officer, Kerala Head Load Workers Welfare Board and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`THURSDAY, THE 31[ST] DAY OF MARCH 2022 / 10TH CHAITHRA, 1944`** ## **`WP(C) NO. 10266 OF 2022`** ## **`PETITIONER:`** ``` MUHAMMED NIYAZ T.A AGED 29 YEARS S/O ABDUL NAZAR, DIRECTOR SOUTH KAIRALI TRADE LINKS PRIVATE LTD, K P 01/545, NASEEMA MANZIL, SBI BESIDE ROAD, KALLARA, THIRUVANANTHAPURAM, PIN-695 606. ``` ``` BY ADV SOJAN MICHEAL ``` ## **`RESPONDENTS:`** ``` 1ASSISTANT LABOUR OFFICER 3RD FLOOR NO 19, CIVIL STATION, ATTINGAL-695 101. 2DISTRICT LABOUR OFFICER, DISTRICT LABOUR OFFICE, KOLLAM - 1 3THE CHAIRMAN, KERALA HEAD LOAD WORKERS WELFARE BOARD, TRIVANDRUM DISTRICT COMMITTEE, KAUSTHUBHAM COMPLEX, TC/43(C-1189) CHALA P.O., THIRUVANANTHAPURAM, PIN-695 036 4HARISH MAJHI, AGED 19 YEARS S/O SUKA MAJHI, C/O MUHAMMED NIYAS T.A, DIRECTOR,SOUTH KAIRALI TRADE LINKS PRIVATE LTD, K P 01/545, NASEEMA MANZIL, SBI BESIDE ROAD, KALLARA, THIRUVANANTHAPURAM, PIN-695 606 5UTTAM GOUD, AGED 18 YEARS S/O BIJAYA GOUD, C/O MUHAMMED NIYAS T.A, DIRECTOR, SOUTH KAIRALI TRADE LINKS PRIVATE LTD, K P 01/545, NASEEMA MANZIL, SBI BESIDE ROAD, KALLARA, THIRUVANANTHAPURAM, PIN-695 606 ``` ``` 2 ``` ## **`WP(C) NO. 10266 OF 2022`** ``` 6KSHETRA GOUD, AGED 34 YEARS S/O DEBARAM GOUD, C/O MUHAMMED NIYAS T.A, DIRECTOR, SOUTH KAIRALI TRADE LINKS PRIVATE LTD, K P 01/545, NASEEMA MANZIL SBI BESIDE ROAD, KALLARA, THIRUVANANTHAPURAM, PIN-695 606 ``` ``` 7JAYADEB MAJHI, AGED 36 YEARS S/O LOMBADAR MAJHI, C/O MUHAMMED NIYAS T.A, DIRECTOR SOUTH KAIRALI TRADE LINKS PRIVATE LTD, K P 01/545, NASEEMA MANZIL, SBI BESIDE ROAD, KALLARA, THIRUVANANTHAPURAM, PIN-695 606 ``` ``` 8MUNA KAIBATTA, AGED 21 YEARS S/O GOURI KAIBARTTA, C/O MUHAMMED NIYAS T.A, DIRECTOR SOUTH KAIRALI TRADE LINKS PRIVATE LTD, K P 01/545, NASEEMA MANZIL, SBI BESIDE ROAD, KALLARA, THIRUVANANTHAPURAM, PIN-695 606 ``` ``` SR GP SRI JUSTIN JACOB, SRI THOMAS ABRAHAM SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 10266 OF 2022 ``` ``` 3 ``` ## **JUDGMENT** Orders Ext.P1 dated 14.12.2021 of the Assistant Labour Officer and 04.02.2022 Ext.P2 rejecting the appeal preferred against Ext.P1 have been challenged in this Court. 2. Petitioner is the director of ‘South Kairali Trade Links Private Ltd., (hereinafter called an establishment) whereas respondent Nos.4 to 8 are the employees. For the purpose of starting the business had taken a building on lease on 21.10.2021 and also obtained the occupancy certificate from Panchayat. It is engaged in processing of natural RSS-4 sheets value adding to RSS -3 sheets by doing grading, segregating, clipping and bundling upto 25 Kgs. For the purpose of loading and unloading of tiles, Fiber materials and glasses, petitioner required the service of special skilled persons, who would deal with the material in an organised and skilled manner and in this regard, had submitted an application for registration of respondent Nos.4 to 8 under Rule 26A of the Kerala Headload Workers Rules. Respondent No.1 rejected the same and the appeal preferred, was, also dismissed. ``` WP(C) NO. 10266 OF 2022 ``` ``` 4 ``` 3. Learned counsel appearing on behalf of the petitioner submits that the findings for rejection are totally against the provisions of the Act and Rules much less the judgment of this Court reported in _**Sunny Varghese and Others**_ v. _**Assistant Labour Officer and Others**_ [2022 (2) KHC 27] where the stand of the respondents that the area falls under the scheme and there are other many workers available, have been rejected. The aforementioned action is also in violation of fundamental rights as envisaged under Article 19(1)(g) of the Constitution of India. An amendment has been made to the Headload Workers Act, 1978, whereby Section 9A was introduced providing the facility of engaging the services of Headload workers which require assistance of skilled persons. 4. On the other hand, learned counsel appearing on behalf of respondent No.3 submitted that the orders are totally justified and legal, do not call for interference, as it would take away the valuable right of the already registered headload workers, who are falling under the Scheme much less their livelihood. ``` WP(C) NO. 10266 OF 2022 ``` ``` 5 ``` 5. I have heard the learned counsel for the parties and appraised the paper book. 6. It would be expedient to extract the relevant portion of the findings entered in Ext.P1 and P2: ## Exhibit P1: The Kerala Head Load Workers Welfare Board has informed that the Head load workers from the Karrentt pool are willing to do Loading and unloading work in the said area. Therefore, the Chairman of the Board has expressed in writing his disagreement in issuing 26(A) card to the 5 applicants. In the above circumstances, the applications submitted under rule 26(A) for registration by Shri.Kshethra Gowd, Shri.Harish Majhi, Shri.Jaydev Majhi, Shri.Uttam Gowd, Shri.Munna Kaibertha are hereby stands rejected. You are entitled to prefer an appeal against this order within the stipulated time before District Labour Officer, Thiruvananthapuram who is the appellate authority. ## Exhibit P2: The Board representative submitted that, the establishment which is about to start its operation is situated in a schemed area falling under the Venjarammoodu Sub Office of Kerala Head Load Welfare Board. Presently there are 10 workers in the said area and they are willing to work. Therefore, the applicants should not be issued 26 (A) card. ``` WP(C) NO. 10266 OF 2022 ``` ``` 6 ``` Among the applicants Jaydev Majhi, Munna Kabertha, Harish Majhi appeared and gave their statements. They are residents of Odisha. It was informed that the other two applicants have gone to their native. As per the statements given by the workers and the proprietor it is understood that all the applicants are workers who design tiles and glass doors. The applications were rejected by the Assistant Labour Officer Attingal due to the objections raised by the Chairman of the District Head Load Workers. In the above circumstances, the order of the Assistant Labour Officer No. 265/2021 dated 14.12.2021 is found to be correct and the appeals preferred by the applicants are rejected.” ## 7. The reasoning aforementioned is totally against the provisions of Section 9A of the Headload workers Act, which reads thus: “9A. Engaging the services of headload workers.-(1) Subject to provisions of this Act, an employer shall engage a headload worker registered under the Act in connection with the work of his establishment: Provided that in the case of works which require assistance of skilled persons and which are to be done with due diligence or require the aid of machinery, such works may be done by engaging the persons having such skill or by the machinery, as the case may be (2) Every Headload worker shall be entitled to wages as prescribed by the Government under the provisions of this ``` WP(C) NO. 10266 OF 2022 ``` ``` 7 ``` Act only if their services have been engaged by the employer or the owner of an establishment.” 8. It is now a settled law by this Court that the rejection of the application on the ground that the area under which business is attempted to be carried on falls within a declared scheme with available headload workers and the said establishment cannot be permitted to engage other employee is no longer res integra, in view of the ratio decidendi culled out in paragraphs 9, 10, 11 and 13 of the judgment cited supra, the same reads as under: 9. Vehement and persuasive contentions were raised by Adv.Krishnamoorthy and invited this Court’s attention to the scheme formulated under section 13 of the Act, Rule 26A of the Rules and clause 6A of the Scheme. Despite the persuasive arguments of the learned Counsel, this Court is unable to accept the contention that when an establishment falls in an area covered by the scheme and when there are existing registered headload workers attached to the pool, the establishment cannot seek to obtain registration of headload workers for its employees. The aforementioned contention is rejected for the following reasons: 9.1. In the Full Bench judgment in Raghavan v. Superintendent of Police after concluding that the scheme is ``` WP(C) NO. 10266 OF 2022 ``` ``` 8 ``` inapplicable to the headload workers employed in an establishment, it was observed as follows: “The registration contemplated by the Scheme is not applicable to permanent headload workers employed in an establishment either directly by the employer or through a contractor. But that does not mean that such permanent workers cannot get registered as per the provisions contained under Rule 26 A. As mentioned earlier, the Act and the Rules are made applicable for the whole of the State and the requirement of registration under Rule 26A is effective throughout the State whether it is an area to which the Scheme is made applicable or not. Therefore, all headload workers whether permanently employed in an establishment or not are to get registration under Rule 26A”. The inevitable corollary of the above observations is that the permanent employees of an establishment can apply for and obtain registration as headload workers, even in areas covered by the scheme. 9.2. Apart from the above, there is no provision either in the Act or the Rules or in the scheme which can even indirectly indicate that once an area is covered under the scheme, no new worker can be registered as headload workers who are the permanent employees of an establishment. 9.3. This Court has already held in several decisions that the employer has a right to get his employees registered as headload workers under rule 26A of the Rules. Apart from the Full Bench decision in Raghavan’s case, the decisions in Rajeev v. District Labour Officer as well as in Manzoor v. District Labour Officer are relevant in the above context. It was held in the aforecited decisions that, while considering ``` WP(C) NO. 10266 OF 2022 ``` ``` 9 ``` the applications for registration as headload workers under Rule 26A of the Rules, the Registering Authority's lookout is not whether the applicant was a headload worker or not prior to such registration, but whether the employer is willing to engage the applicant as a headload worker. It was further held that there was no requirement under law, that the applicant must have been working in the establishment as a headload worker for becoming eligible for such registration. The fact that the application was submitted by the workers themselves is evidence of the willingness of the workers to work as headload workers. The nature of work indulged in by the applicants, prior to the application, has no significance as the applicants could not have worked as headload workers or do headload work in a scheme covered area, without obtaining registration. The decision of the Division Bench in Gangadharan C.P. and Another v. Abdul Nasir and Others is also relevant, in this context. 10. The aforesaid decisions clearly declared the right of an employee, attached to an establishment to obtain registration as a headload worker under the Act and its Rules, even in scheme covered areas. The contention raised by the learned Standing Counsel is thus bereft of any merit and there is no statutory provision to justify such an argument. Therefore, a permanent worker, engaged by an employer of an establishment situated in areas covered by the scheme, can register himself as a headload worker under Rule 26A of the Rules. 11. Further, every person has a fundamental right under ``` WP(C) NO. 10266 OF 2022 ``` ``` 10 ``` Article 19(1)(g) to carry on any occupation and the same can be subjected only to reasonable restrictions under Article 19(6) of the Constitution. The work of loading and unloading is not a work that requires any specialised experience or technical or educational qualification. Any person who is willing to do loading and unloading must have the freedom to do the said work unless it is curtailed by a reasonable restriction. The restriction that is introduced through the Act for doing headload work, in a scheme covered area, is the requirement of registration as a headload worker. If the restriction of registration curtails the fundamental right of every individual to do headload work and the said restriction has to be constitutionally valid, without falling foul of Article 19(1)(g) and Article 14, then that restriction must be reasonable. If the restriction is not reasonable, it will create an unreasonable classification resulting in discrimination between those left out of the group and those included in the group of headload workers. Discrimination being the antithesis of equality, the whole Act itself may not stand the test of constitutionality. To avoid such a situation, the provisions of the Act relating to registration have been read down to mean willingness to do headload work with sufficient physique and the employer's consent is sufficient to grant registration. 13. When the employees of the petitioner in W.P.(C) No. 19896 of 2019 have expressed their inclination to work as headload workers and even applied for registration, there is no legal justification, as has occurred in the present case, to deny registration to such employees, as headload workers ``` WP(C) NO. 10266 OF 2022 ``` ``` 11 ``` under the Act and Rules. The reasons stated by the Registering Authority as well as the Appellate Authority, are not valid reasons in the eye of law. The reduction of income or job opportunities for existing headload workers is not a ground under law for denying registration to workers who are willing to do loading and unloading works in an establishment that falls under areas covered by the scheme.” I am of the view that the reasoning assigned by the authorities is totally against the ratio decidendi extracted above. The order cannot be permitted to sustain being wholly illegal, arbitrary and in violation of Article 19(1)(g) of the Constitution of India. Accordingly, Exts.P1 and P2 orders are set aside. The writ petition is allowed issuing direction to the respondent No.1 to register the name of respondent No.4 to 8 and issue them identity cards under the relevant provisions within a period of 15 days from the date of receipt of the copy of the judgment. Sd/- **AMIT RAWAL JUDGE** nak ``` 12 ``` ## **`WP(C) NO. 10266 OF 2022`** ## **`APPENDIX OF WP(C) 10266/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE ORDER DATED 14.12.2021 OF THE 1ST RESPONDENT ``` ``` Exhibit P2TRUE COPY OF THE ORDER DATED 4.2.2022 OF THE 2ND RESPONDENT ```