Muhammed Rashid and Others v. Commissioner of Police, Kollam and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY,THE 27TH DAY OF MARCH, 2019/6TH CHAITHRA, 1941 WP(C).No. 37883 of 2018** ## **PETITIONERS:** **1 MUHAMMED RASHID, AGED 26 YEARS S/O ABDUL RAHIM, RESIDING AT VILAYIL PUTHEN VEEDU, PUTHENCHANTHA P.O., PANMANA, PIN CODE 691583, MANAGING PARTNER, M/S AK TRADING COMPANY, HAVING REGISTERED OFFICE AT BUILDING NO.XIV/544, MEENAD, CHATHANNUR P.O., KOLLAM DISTRICT, PIN CODE 691 572** **2 ISMAIL KUNJU.A, AGED 44 YEARS S/O ABDUL KAREEM,RESIDING AT KIZHAKKADATH VADAKKATHIL,KOTTUKADU, MUKUNDAPURAM P.O., PARTNER M/S AK TRADING COMPANY, MEENAD, CHATHANNUR P.O,KOLLAM DISTRICT PIN CODE 691 585.** **3 ASHAREPH, AGED 53 YEARS S/O ABDUL RAHUMAN KUNJU,RESIDING AT AMMENA MANZIL,EDAVATTOM, PERINAD P.O.VELLIMON KOLLAM PIN CODE 691 511.PARTNER M/S AK TRADING COMPANY MEENAD CHATHANNUR P.O,KOLLAM DISTRICT.** **4 SHAFEER.S, AGED 32 YEARS S/O SOUKATHALI,RESIDING AT SAHEER MANZIL,SOUHARATHA NAGAR,144 KALLUMTHAZAM,KUTTICHIRA, KILLIKOLLUR KOLLAM DISTRICT PIN CODE 691 004. PARTNER M/S AK TRADING COMPANY MEENAD CHATHANNUR P.O,KOLLAM DISTRICT.** WP(C) NO.37883 OF 2018 :-2-: - **5 ABDUL MAJEED, AGED 44 YEARS** - **S/O EBRAHIM KUTTY,MUKALATHARA VEEDU,PALACKAL, THEVALAKKARA P.O.KOLLAM PIN CODE 691 524.PARTNER M/S AK TRADING COMPANY MEENAD CHATHANNUR P.O,KOLLAM DISTRICT.** - **6 NAHAS,** - **AGED 41 YEARS** **S/O MAITHEEN KUNJU,RESIDING AT KALEELIL KADAYIL NADUVATHU CHERI,PUTHENCHANTHA P.O.PANMANA PIN CODE 691 583.PARTNER M/S AK TRADING COMPANY MEENAD CHATHANNUR P.O,KOLLAM.** **BY ADV. SRI.P.V.VENUGOPAL** ## **RESPONDENTS:** - **1 COMMISSIONER OF POLICE, KOLLAM, PIN CODE 691 001** - **2 SUB INSPECTOR OF POLICE, CHATHANNUR POLICE STATION,PIN CODE 691 572.** - **3 NAGARAJ,** - **(HEAD LOAD WORKER OF AITUC) CHIRAVILA PUTHENVEEDU KOTTIYAM,PIN CODE 691 571.** - **4 SEKHAR,** - **(HEAD LOAD WORKER OF AITUC),PUTHUVEEDU, KOTTIYAM 691 571.** - **5 JAYAPRAKASH, PRABHA NIVAS,(HEAD LOAD WORKER OF AITUC) MUNDAYKKAL P.O.KOLLAM PIN CODE 691010.** - **6 KERALA HEAD LOAD WORKERS WELFARE FUND BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,SRM ROAD ERNAKULAM, KOCHI 18,PIN CODE 682 018** - **ADDL. CHATHANOOR GRAMA PANCHAYATH** - **R7 REPRESENTED BY SECRETARY CHATHANOOR, PIN CODE NO.691572. (ADDL.R7 IS IMPLEADED AS PER ORDER DATED 17.10.2019 IN IA 1/2019.)** **BY ADVS. SRI.K.V.ANIL KUMAR SRI.M.R.SASITH** WP(C) NO.37883 OF 2018 :-3-: **SRI.SIJU K., SC, KHWWB** ## **OTHER PRESENT:** **SR.GP SRI.P.P.THAJUDEEN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.03.2019, THE COURT ON 27.03.2019 DELIVERED THE FOLLOWING:** WP(C) NO.37883 OF 2018 :-4-: ## **WP(C) NO.37883 OF 2018** ## **J U D G M E N T** ## **N.ANIL KUMAR,J:** The petitioners have preferred this writ petition under Art.226 of the Constitution of India seeking for a direction to respondents 1 and 2 to afford adequate and effective police protection to the petitioners' business establishment under the name and style 'M/s.A.K.Trading Company' at Meenad, Chathannur without any interference or interruption from respondents 3 to 5 or their political supporters under the guise of scheme covered pool area under the Kerala Headload Workers(Regulation of Employment and Welfare)Scheme, 1983 (hereinafter referred to as 'the Scheme'). 2. M/s.A.K.Trading Company, Meenad in Kollam District is a partnership firm. The petitioners 1 to 6 are partners of the firm and they seek effective police protection to do all loading and unloading works by themselves in their capacity as owners in the premises of their firm without any outside labour assistance. According to the petitioners, respondents 3 to 5 are obstructers, illegally interfering with loading and unloading works claiming right under the Scheme cited WP(C) NO.37883 OF 2018 :-5-: supra. The petitioners filed Ext.P2 complaint before the second respondent seeking police protection. However, no action has been taken by the second respondent despite specific request in this regard. Hence, the petitioners are before this Court. 3. Sixth respondent filed separate statement contending that the partnership deed is not seen registered and the establishment of the petitioners is yet to be operated. It is further stated that the place wherein the petitioners' establishment is situated is a Scheme Implemented Area and four pools are established. The sum and substance of the contention is that since the area of operation of the establishment is a Scheme Covered area, the petitioners are liable to engage pool workers in the absence of permanent workers having 26A card. 4. Respondent No.3 filed a counter affidavit for and on behalf of the respondents 4 and 5 as well. According to them, when the petitioners engaged some other unregistered workers for loading and unloading of tiles for the construction of their shop, the respondents 3 to 5 demanded work in accordance with the Scheme. 5. Additional 7[th] respondent filed separate affidavit stating that the Panchayat had issued D & O licence in favour of the petitioner company pursuant to Ext.R7(a). WP(C) NO.37883 OF 2018 :-6-: 6. In the light of the contentions raised, petitioner filed I.A.No.1 of 2018 along with an affidavit on 12.12.2018 seeking to accept Exts.P5 to P10 as additional documents. The above I.A. is allowed. Pursuant to Ext.P5 rent deed dated 30.10.2018, the petitioner took the building where the company is situated on rent. The first petitioner had submitted Ext.P6 application seeking trade licence for M/s.A.K.Trading Company along with rent deed before the Secretary, Grama Panchayat, Chathanoor in the name of M/s.A.K.Trading Company. On receipt of application, Ext.P7 receipt was issued by the Secretary, Grama Panchayat, Chathanoor after due verification. The petitioners also submitted all requisite details before the Registrar of Companies, Thiruvananthapuram for which the petitioners were issued with on-line receipt dated 6.12.2018 and 7.12.2018 as per Exts.P9 and P10 respectively indicating remittance of fees in accordance with law. Consequently, Ext.P11 certificate bearing Regn.No.5209/2018 was issued by the Registrar of firms acknowledging registration in favour of A.K.Trading Company upon acceptance of the partnership dated 7.12.2018. 7. Admittedly, the place where the petitioners have claimed loading and unloading work is a scheme covered WP(C) NO.37883 OF 2018 :-7-: area under the Scheme. As per Paragraph 6 of the Scheme, no headload worker, who is not a registered headload worker under Rule 26A of the Rules shall be allowed or required to work in any area where the scheme applies from the date of commencement of the functional operation of the scheme in the area. Paragraph 6(2) of the Scheme inter alia provides that from the date of commencement of the functional operation of the Scheme in any area, no headload worker who is permanently employed by an employer or contractor shall be allowed or required to work in any areas to which the Scheme applies unless he is granted a further registration under the provisions of the Scheme. Paragraph 13 of the Scheme mandates that the scheme when brought into force shall be administered by the Committee constituted under Section 18 of the Kerala Headload Workers Act, 1978 (hereinafter referred to as 'the Act'). Section 18(8) of the Act prescribes the functions of the Committee including to pool the headload workers, who are not employed under any contractor or employer. Paragraph 19 of the Scheme provides that the Committee shall determine the number of headload workers needed for their area and for this purpose, increase or decrease in their register. WP(C) NO.37883 OF 2018 :-8-: 8. In **Raghavan** v. **Superintendent of Police** [1998(2) KLT 732 (FB)] and **Karunanakuara Kurup** v. **State of Kerala** [2004(1) KLT 215 (FB)], this Court held that in an area where the Scheme is not applicable, employer can engage any headload worker of his own choice. In view of the above settled legal position, learned counsel for the party respondents contend that the employer cannot engage any headload worker of their own choice except in accordance with the scheme. 9. Section 12(a) of the Indian Partnership Act provides that every partner has a right to take part in the conduct of the business subject to contract between the partners. Going by the Scheme of the Partnership Act, it is clear that a partnership is business with multiple owners each of whom has invested in the business. In this case, the firm was initially not registered, but the defect was subsequently cured. The petitioners 1 to 6 are seeking effective protection to do all loading and unloading works directly by the petitioners themselves in their capacity as owners. Going by the definition contemplated under Section 2(m) of the Act, there must be employer-employee relationship between the parties to engage a headload worker in a scheme covered area. The petitioners are the owners of the partnership firm. The WP(C) NO.37883 OF 2018 :-9-: law does not permit them to make an application for the issuance of Rule 26A card. The party respondents- Unions have no right to obstruct the petitioners or prevent them from loading and unloading ceramic tiles, granite and marble flooring materials within the premises. In the context of the statutory scheme, it is clear that the petitioners' establishment is not employing workers for loading and unloading and the petitioners being partners of the firm, are doing loading and unloading works directly in the capacity as owners of the establishment. In the event of the petitioners employing workers for loading and unloading, no doubt the establishment must be covered under the scheme and the petitioners are legally obliged to engage workers from the pool as contemplated under the scheme. There is no pleading in the writ petition that the establishment is employing other workers for loading and unloading of goods and the work of loading and unloading for which the worker is employed is of predominant nature or the workers employed are carrying on the operations incidental and connected thereto. Hence this question does not arise for consideration in this writ petition. 10. The party respondents have no right to obstruct the petitioners from doing the work by themselves. They WP(C) NO.37883 OF 2018 :-10-: have also no right to defeat the claim of the petitioners on the ground that the cause of action alleged is premature and the petitioners' firm is yet to become functional. There is also no evidence to show that the petitioners are utilising other workers for loading and unloading to the detriment of the party respondents. Merely on the strength of the scheme, the Unions have no right to claim employment in the petitioners' establishment unless and until it is proved that the petitioners have chosen to appoint other workers from outside to defeat the scheme. In the result, the writ petition is disposed of directing respondents 1 and 2 to provide adequate and effective police protection to petitioners 1 to 6 to do the loading and unloading works in the business premises of M/s.A.K.Trading Cimpany at Meenad, Chathannur, without any interference and interruption from respondents 3 to 5 or their political supporters. We also make it clear that in case the petitioners are in need of workers from outside, the petitioners shall employ the workers from the pool made by the Committee in accordance with the scheme until the petitioners elect to engage their own workers as provided under Rule 26A of the Kerala Headload Workers Rules,1981. WP(C) NO.37883 OF 2018 :-11-: The writ petition is disposed of as above. Sd/- **P.R.RAMACHANDRA MENON** , JUDGE sd/- **N.ANIL KUMAR** , JUDGE MBS/ WP(C) NO.37883 OF 2018 :-12-: ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF DEED OF PARTNERSHIP OF M/S AK TRADING COMPANY DATED 30.10.2018** **EXHIBIT P2 A COPY OF THE COMPLAINT GIVEN BY PETITIONERS BEFORE 2ND RESPONDENT S.I.POLICE DATED 15.11.2018** **EXHIBIT P3 A ACKNOWLEDGEMENT OF PETITION RECEIPT 931/2018 ISSUED BY 2ND RESPONDENT SUB INSPECTOR OF POLICE DATED 15.11.2018** **EXHIBIT P4 A COPY OF PHOTOGRAPH INDICATING TRESPASS AND OBSTRUCTION BY RESPONDENTS 3-5.** **EXHIBIT P5 A TRUE COPY OF RENT DEED DATED 30/10/2018. EXHIBIT P6 A TRUE COPY OF APPLICATION SEEKING TRADE LICENSE DATED 30/10/2018 GIVEN BY 1ST PETITIONER. EXHIBIT P7 A TRUE COPY OF RECEIPT BEARING NO.08/11/2018. EXHIBIT P8 A TRUE COPY OF APPLICATION SUBMITTED BEFORE REGISTRAR OF FIRMS, THIRUVANANTHAPURAM DATED 06/12/2018. EXHIBIT P9 A COPY OF THE ON LINE RECEIPT DATED 06/12/2018. EXHIBIT P10 TRUE COPY OF RECEIPT BEARING NO.016946 DATED 07/12/2018 INDICATING REMITTANCE OF FEES ISSUED REGISTRAR OF FIRMS, THIRUVANANTHAPURAM.** WP(C) NO.37883 OF 2018 :-13-: ## **EXHIBIT P11** - **A COPY OF ACKNOWLEDGMENT OF REGISTRATION BEARING REGISTRATION NO.5209/2018 ISSUED BY REGISTRAR OF FIRMS ACKNOWLEDGING REGISTRATION IN FAVOUR OF A.K. TRADING COMPANY INDICATING FACT OF ACCEPTANCE OF PARTNERSHIP DATED 07/12/2018.** **EXHIBIT P12** - **A COPY OF D&O LICENSE D&O LICENSE BEARING LICENSE NO.C4 408/2018 DATED 05/01/2019 WAS ISSUED BY SECRETARY GRAMA PANCHAYATH CHATHANOOR IN FAVOUR OF A.K.TRADING COMPANY.** - **EXHIBIT P13 A TRUE COPY OF NIL RETURN INDICATING NO SALES FOR MONTH OF NOVEMBER 2018.** - **EXHIBIT P14 A TRUE COPY OF NIL RETURN INDICATING NO SALES FOR MONTH OF DECEMBER, 2018.** - **EXHIBIT P15 A TRUE COPY OF NIL RETURN INDICATING NO SALES FOR MONTH OF JANUARY 2019.** - **RESPONDENTS' EXHIBITS:** **ANNEXURE R6(a)** THE COPY OF DETAILS REGARDING THE GST REGISTRATION OF THE 1ST PETITIONER'S FIRM TAKE FROM THE WEBSITE OF GST SERVICES. **EXHIBIT R7(a)** TRUE COPY OF LICENSE ISSUED BY THIS RESPONDENT TO THE PETITIONER'S COMPANY. **EXHIBIT R3(a)** PHOTOGRAPHS OF THE SHOP OF THE PETITIONERS.