Muhammed ShaneeJ.P v. The District Police Chief, Kollam, and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 3[RD] DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943** ## **WP(C) NO. 3518 OF 2021** ## **PETITIONER:** MUHAMMED SHANEEJ.P AGED 35 YEARS S/O.MUHAMMED ALI, AMAZON DELIVERY CENTRE, SAS ASSOCIATES, OLD GOWRI THEATER, KAVANAD P.O., KOLLAM. BY ADV BABU S. NAIR ## **RESPONDENTS:** |1|THE DISTRICT POLICE CHIEF| |---|---| ||KOLLAM, PIN-691 001.| |2|THE STATION HOUSE OFFICER,| ||SAKTHIKULANGARA POLICE STATION, KOLLAM DISTRICT, PIN-| ||691 581.| |3|THE HEADLOAD WORKERS WELFARE FUND BOARD,| ||DISTRICT COMMITTEE, REPRESENTED BY ITS CHAIRMAN,| ||KOLLAM, KOLLAM DISTRICT, PIN-691 001.| |4|THE SECRETARY, HEADLOAD WORKERS UNION (CITU),| ||NEAR VILLAGE OFFICE, KAVANAD P.O., KOLLAM DISTRICT,| ||PIN-691 003.| |5|THE PRESIDENT, HEADLOAD WORKERS UNION(INTUC),| ||OPP: KCHELL RESIDENCY, PAN VEL- KANYAKUMARI HIGH WAY,| ||RAMANKUKANGARA, KUREEPUZHA NORTH, KAVANAD P.O. KOLLAM,| ||PIN-691 003| |6|THE PRESIDENT, HEADLOAD WORKERS UNION (BMS),| ||NEAR DHANYA SUPER MARKET, ALTHARAMOODU, KAVANAD .P.O.,| ||KOLLAM DISTRICT, PIN-691003.| ||ADDRESS OF R5 AND R6 CORRECTED AS PER ORDER DATED| ||A/3/2021 IN IA1/2021 IN WPC NO.3518/2021| ||BY ADVS.| ||GOVERNMENT PLEADER| ||SRI.K.SIJU| **2** WP(C) NO. 3518 OF 2021 SRI.S.SREEKUMAR (KOLLAM) ## **OTHER PRESENT:** SRI.E C.BINEESH - GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 3518 OF 2021 **3** ## **JUDGMENT** The petitioner says that he has entered into Ext.P1 agreement with a company by name “Amazon Transportation Services Private Limited”, (hereinafter referred to as “Amazon” for short) which is an Online merchandising service provider and that he has taken a premises for storing and distributing the articles involved in his business. He says that he has permanent skilled workers to deal with the various articles entrusted by “Amazon” for the purpose of distribution to its customers and that most of them are fragile, which includes electronic equipments and such other. 2. The petitioner says that the afore articles have to be dealt with very carefully, because its improper handling would cause its complete destruction and therefore, that none of the workers in the “Pool” of the Headload Workers, under the command of the 3[rd] respondent - Welfare Fund Board, can claim exclusive right to deal with its loading and unloading activities. 3. The petitioner alleges that, however, when he proposed to start the business in the premises taken on rent, WP(C) NO. 3518 OF 2021 **4** members of respondents 4 to 6 Unions came to him and demanded that they alone be entrusted with the loading and unloading activities, or that they be paid Gawking Charges “(Nokkukooli)”, threatening that if this is not acceded to, he will not be allowed to run the establishment. The petitioner says that he, therefore, had no other option but to approach the 2[nd] respondent – Station House Officer, through Ext.P3 seeking protection; but that since no action has been taken thereon, he has been constrained to move this Court through this writ petition. 2. I have heard Sri.Babu S.Nair – learned counsel for the petitioner; Sri.Siju Kamalasanan – learned Standing Counsel for the 3[rd] respondent; Sri.S.Sreekumar – learned counsel appearing for respondent No.4 and the learned Government Pleader – Sri.E.C.Bineesh appearing for respondents 1 and 2. 3. I notice from the file that the summon issued to respondent No.6 has been returned with the endorsement “unserved”. 4. Sri. Siju Kamalasanan – learned Standing Counsel for WP(C) NO. 3518 OF 2021 **5** the 3[rd] respondent Board, submitted that the area where the petitioner proposes to carry on his business is covered by a Scheme under the Headload Workers Act and therefore, that he is obligated to engage workers from the “Pool” maintained by his client, under the provisions of the said Act. 5. Sri.S.Sreekumar – learned counsel appearing for the 4[th] respondent, alleged that petitioner has not even started his business and that he has approached this Court by way of a peremptory effort to deny employment to his clients and the members of other Trade Unions. He submitted that the effort of the petitioner is extremely confutative and thus prayed that this writ petition be dismissed. When I evaluate the afore submissions, there can be no doubt that even if the area in question is covered by a Scheme under the Kerala Headload Workers Act, none of the members of the “Pool” attached maintained by the 3[rd] respondent - Board can claim right to deal in loading and unloading of articles if they are fragile or electronic. This has been affirmatively declared by this Court in various judgments including the recent one, namely, **A. Balakrishnan v. The** WP(C) NO. 3518 OF 2021 **6** **Deputy Superintendent of Police** (W.P.(C) NO.28462/2020 & Con.Cases). Therefore, the real question is whether the articles now proposed to be dealt with by the petitioner are fragile or electronic and this is not something that this Court can consider affirmatively, while acting under Article 226 of the Constitution of India. As at present, the petitioner says that the articles are fragile, which includes various electronic equipments. If any of the party respondents and their men have a case that it includes materials which are not fragile, they certainly must approach the 3[rd] respondent - Welfare Fund Board with an appropriate application, so that an apposite investigation can be launched to verify the nature of the said articles at the relevant time. They, however, cannot take law into their own hands and cause obstruction to the activities of the petitioner, merely on the allegation that the articles dealt with by him are not fragile or electronic ones. In the afore perspective, I order this writ petition and direct the 2[nd] respondent - Station House Officer, to afford adequate and effective protection to the petitioner and to his WP(C) NO. 3518 OF 2021 **7** permanent employees to load and unload fragile and electronic articles, which they are entrusted with under Ext.P1 agreement. The said respondent will also ensure that law and order is maintained in the area where the petitioner is carrying on business or proposed to carry on business, without any breach being allowed by any person, including the party respondents or their men or associates. As far as the party respondents are concerned, they are at the full liberty to approach the 3[rd] respondent - Board or such other competent Authority, if they have reliable information that the petitioner is dealing with articles which are not fragile or electronic in nature; in which event, the said Authority/s will cause necessary enquiry into the same, including physical inspection in the premises of the petitioner and issue appropriate orders, which the petitioner will be bound to comply with, subject to his available remedies. ## **Sd/DEVAN RAMACHANDRAN JUDGE** ANB WP(C) NO. 3518 OF 2021 **8** ## **APPENDIX OF WP(C) 3518/2021** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE MASTER SERVICES AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND M/S. AMAZON TRANSPORTATION SERVICES PVT.LTD. DATED 03.01.2019. - EXHIBIT P2 TRUE COPY OF THE RENT AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND ONE AJITHA.P.V. DATED 27.01.2021. - EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 08.02.2021. - EXHIBIT P4 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN WPC NO.16941/2020 DATED 24.08.2020. - EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN WPC NO.21382/2020 DATED 06.11.2020. - EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN WPC NO.23583/2020 DATED 06.11.2020. RESPONDENT EXHIBITS EXHIBIT R3(a) THE COPY OF RELEVANT PAGE OF THE MINUTES BOOK REGARDING THE MEETING HELD ON 17.01.2020 BETWEEN THE ACCOUNTS OFFICER-IN-CHARGE OF THE 3RD RESPONDENT IN KOLLAM DISTRICT COMMITTEE AND THE OTHER FRANCHISEE OF AMAZON. EXHIBIT R3(b) TRUE COPY OF 2 OF THE WORK CARD SHOWING THE EMPLOYMENT OF WORKERS FROM THE POOL NO.38. EXHIBIT R3(c) TRUE COPY OF ONE OF THE WORK CARD SHOWING THE EMPLOYMENT OF POOL WORKERS BY INSTAKART SOLUTIONS.