Niel Entertainment & Archa Unni v. Superintendent of Police, Kollam District & Others (WP(C) No. 23346/22)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944** ## **WP(C) NO. 23346 OF 2022** ## **PETITIONERS** 1 NIEL ENTERTAINMENT, REP. BY NIMIL K.K, AGED 29, S/O. RAMESHAN K.K, R/AT FLAT NO. 1204, CONFIDENT INDUS, MLA ROAD, THUTHIYOOR, KAKKANAD 682 038. 2 ARCHA UNNI, AGED 27, W/O. NIMIL, MANAGER, OPERATION HEAD OF NIEL ENTERTAINMENT R/AT FLAT NO. 1204, CONFIDENT INDUS MLA ROAD, THUTHIYOOR, KAKKANAD, 682 038. BY ADV T.S.MAYA (THIYADIL) ## **RESPONDENTS** 1 SUPERINTENDENT OF POLICE, KOLLAM DISTRICT , KOLLAM, PIN 691 001. 2 ASSISTANT COMMISSIONER OF POLICE, ASRAMAM , KOLLAM DISTRICT, PIN 691 001. 3 STATION HOUSE OFFICER, KOLLAM EAST POLICE STATION, KOLLAM PIN 691 002. 4 THE SECRETARY, HEAD LOAD & GENERAL WORKERS UNION (CITU), ASRAMAM, KOLLAM DISTRICT, PIN 691 002. 5 THE SECRETARY, HEAD LOAD & GENERAL WORKERS UNION (INTUC), ASRAMAM, KOLLAM DISTRICT, PIN 691 002. 6 THE SECRETARY, HEAD LOAD & GENERAL WORKERS UNION (BMS), ASRAMAM, KOLLAM DISTRICT, PIN 691 002. BY ADVS. S.SREEKUMAR (KOLLAM)-R4 K.VIJAYAN - R6 WP(C).23346/22 2 ## **OTHER PRESENT:** T.K.SHAJAHAN-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).23346/22 3 ## JUDGMENT Dated : 25[th] July, 2022 1. This writ petition is filed seeking the following relief : Issue a writ order or direction in the nature of mandamus or other appropriate writ directing respondents 1 and 3 to take necessary actions against Ext.P3 and P5 complaints and to render adequate and meaning full protection as directed by the Labour Officer as per Ext.P4 to the petitioners permanent skilled, expert and experienced employees to load the exhibition articles which are highly sensitive, need much care and application of mind while do so. 2. Heard the learned counsel for the petitioners and the learned Government Pleader as well the learned counsel appearing for respondents 4 and 6. 3. The learned counsel for the petitioners submits that the petitioners had been conducting an Exhibition at Kollam Asramam ground from 4.6.2022 to 10.7.2022. The 4 WP(C).23346/22 exhibition consists of Portable Under Water Tunnel Aquarium and other decorative items. It is submitted that the petitioner/firm has its own expert employees to fix, repair and remove the tunnels and also create and install the sculptures and other art work at the place of exhibition. 4. It is submitted that, when the exhibition was over, the petitioner attempted to remove the tunnel Aquarium and other articles, respondents 4 to 6 had obstructed the same demanding charges without carrying out any activity. The petitioner had approached the District Labour Officer (DLO), Kollam, who had issued Ext.P4 communication to the police directing the police to give protection for the removal of the Aquarium and such other articles by mechanical means or using the skilled workers. It is submitted that even thereafter, no protection had been granted and the petitioner was unable to remove the articles. Thereafter, it is submitted that Ext.P6 proceedings had been issued by the DLO as Conciliation Officer under Section 21 of the Kerala Headload Workers Act, WP(C).23346/22 5 1978 on 18.7.2022 permitting the petitioner to remove several of the articles which require skilled workers or removal by crane. However, it is submitted that in respect of several other articles, the pool workers who are working in the Scheme covered area where the exhibition was conducted, were permitted to carry out the activity. 5. Relying on the decision of the Larger Bench of this Court in **Theresa Jose v. Sub Inspector of Police, Thoppumpady and Others (2015 (3) KHC 487)** , the learned counsel for the petitioner submits that since the Exhibition conducted by the petitioner will not come under the definition of establishment under the Headload Workers Act, since the predominant activity is not loading and unloading, the petitioner is entitled to remove the articles without recourse to the pool workers and that the petitioner is therefore, entitled to police protection to remove the articles _de hors_ the orders passed by the DLO. 6. Detailed counter affidavits have been placed on record by respondents 4 and 6. In the counter WP(C).23346/22 6 affidavit filed by the 4[th] respondent it is contended that the area in question is admittedly a Scheme covered area and that respondents 4 to 6 have not demanded any ‘nokkukooli’ from the petitioner. It is stated that the petitioner had started a project called “Miracolo” at Kollam Asramam ground and the headload workers under respondents 4 to 6 had done the unloading work for the petitioner except the skilled work. It is submitted that the skilled work was done by the petitioner using the crane and this was never objected by respondents 4 to 6. It is submitted that dispute had been raised when the exhibition ended and that Ext.R4(a) order had been passed by the DLO permitting the loading and unloading work in respect of some of the items by the petitioner and some other items by the pool workers. It is submitted that as long as the said order subsists, the petitioner, who had subjected itself to the jurisdiction of the DLO, cannot contend that the same will not be complied with. Identical contentions have been raised by the 6[th] respondent as well. WP(C).23346/22 7 7. Having considered the contentions advanced, I am of the opinion that the contention raised by the petitioner that the Exhibition carried out by the petitioner was not an 'establishment' under the Act, is one which requires consideration. However, since the learned counsel for respondents 4 to 6 submit that they are not obstructing the loading and unloading work carried out by the petitioner by crane or by skilled workers and since it is an admitted fact that an order has been passed by the DLO, I am of the opinion that the petitioner is to be permitted to carry out all the loading and unloading activity of the delicate items and the items which can be loaded and unloaded through mechanical means without any obstruction from respondents 4 to 6. All contentions of the petitioner based on the judgment of the Larger Bench are left open to be raised before the DLO. The respondents shall not obstruct the loading and unloading activity by crane or skilled workers of the articles which require such loading and unloading. In case of any obstruction by respondents 4 to 6 or any WP(C).23346/22 8 of their members, petitioner may approach the SHO who shall afford adequate protection to the loading and unloading activity of the delicate items and the items which require skilled workers or mechanical means for such loading and unloading. The writ petition is disposed of as above. Sd/- ANU SIVARAMAN, Judge Mrcs WP(C).23346/22 9 ## **APPENDIX OF WP(C) 23346/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE OF THE PETITIONERS PORTABLE UNDER WATER TUNNEL AQUARIUM NAMED AS ''MIRACOLO''. Exhibit P2 TRUE COPY OF THE CERTIFICATES AWARDED TO THE PETITIONER FIRM FROM ARABIAN BOOK OF WORLD AND RECORDS UNIVERSAL BOOK OF RECORD FORUM (URF). Exhibit P3 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ON 14.7.2022 AND ITS RECEIPT. Exhibit P4 TRUE COPY OF THE LETTER ISSUED BY THE DISTRICT LABOUR OFFICER KOLLAM DATED 15.7.2022. Exhibit P5 TRUE COPY OF COMPLAINT FILED BEFORE THE 1ST RESPONDENT AND THE ENDORSEMENT OF 2ND RESPONDENT. Exhibit P6 TRUE COPY OF THE ORDER NO H.L.2 7879/2022 DATED 18/7/2022 ISSUED BY THE LABOUR OFFICER KOLLAM RESPONDENTS' EXHIBITS Exhibit R4(A) THE TRUE COPY OF THE ORDER NO. HL(2)7879/2022 DATED 18.07.2022 OF THE DISTRICT LABOUR OFFICER, KOLLAM. Exhibit R6(A) THE TRUE COPY OF THE ORDER NO. HL (2) 7879/2022 DATED 18.07.2022 OF THE DISTRICT LABOUR OFFICER, KOLLAM.