Nizamukhan v. Superintendent of Police (Rural), 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** **TUESDAY,THE 26TH DAY OF FEBRUARY, 2019/7TH PHALGUNA, 1940** ## **WP(C).No. 34724 of 2018** ## **PETITIONER:** **NIZAMUKHAN, AGED 42 YEARS, S/O HUZZAINARU KUTTY, PROPRIETOR - S.N.STEELS, VADAKKEMUKKU, KANNANALLOOR, KOLLAM-691576.** **BY ADVS.** **SRI.R.KISHORE (KALLUMTHAZHAM) SMT.P.SREESHA** ## **RESPONDENTS:** |**1**|**SUPERINTENDENT OF POLICE (RURAL),**| |---|---| ||**SP OFFICE, KOTTARAKARA, KOLLAM-691506.**| |**2**|**ASSISTANT COMMISSIONER OF POLICE,**| ||**OFFICE OF THE ASSISTANT COMMISSIONER, CHATHANOOR,**| ||**KOLLAM-691572**| |**3**|**STATION HOUSE OFFICER,**| ||**KOTTIYAM POLICE STATION, KOTTIYAM-691571.**| |**4**|**WELFARE BOARD OFFICER,**| ||**KOLLAM HEAD LOAD WORKERS WELFARE BOARD,**| ||**KOLLAM-691001.**| |**5**|**ASSISNTANT LABOUR OFFICER**| ||**PARAVUR, KOLLAM-691334.**| |**6**|**CONVENOR,**| ||**CITU OFFICE, VADAKKEMUKKU, KANNANALLOOR,**| ||**KOLLAM-691576.**| |**7**|**CONVENOR**| ||**STU, VADAKKEMUKKU, KANNANALLOOR,**| ||**KOLLAM-691576.**| WP(C) NO.34724 OF 2018 :-2-: **8 CONVENOR, INTUC, VADAKKEMUKKU, KANNANALLOOR, KOLLAM-691576.** **ADDL.R9 THE DISTRICT LABOUR OFFICER, KOLLAM. ADDITIONAL R9 IS IMPLEADED AS PER order DTD.26.2.2019 IN IA NO.3/2019 IN WP(C) NO.34724 OF 2018** **R6 TO R8 BY SRI.K.SASIKUMAR R4 BY SRI.SIJU K., SC, KHWWB SRI.S.ARAVIND** ## **OTHER PRESENT:** **R1 TO R3 BY SR.GP SRI.P.P.THAJUDEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **19.02.2019, THE COURT ON 26.02.2019 DELIVERED THE FOLLOWING:** WP(C) NO.34724 OF 2018 :-3-: ## **WP(C) NO.34724 of 2018** ## **J U D G M E N T** ## **N.ANIL KUMAR,J:** Petitioner has filed this writ petition seeking a writ of mandamus or any appropriate writ,order or direction to the third respondent to provide adequate police protection to the petitioner's business establishment from the acts of respondents 6 to 8 and their henchmen. 2. The petitioner is running a hardware shop for the sale of iron and steel. According to the petitioner, his business establishment is having 12 skilled permanent workers for loading and unloading of the materials. 3. The petitioner has submitted an application for his four employees for registration under Rule 26A of the Kerala Headload Workers Rules,1981 (for short 'the Rules') way back in 2015. There is considerable delay in disposing of the application by the fifth respondent. Complaining of delay, the petitioner has filed WP(C) NO.35144/2018 before the learned Single Judge. WP(C) NO.34724 OF 2018 :-4-: After having heard both sides, without adverting to the merits, the learned Single Bench disposed of the writ petition holding that the fifth respondent will consider the petitioner's application, expeditiously, in 45 days, following the due procedure. However, the fifth respondent, after submitting the judgment of the learned Single Bench, rejected the application as per Ext.P12 without complying with the principles of natural justice. Had the applications submitted by the labourers under Rule 26A of the Rules been allowed, the petitioner would have been in a position to engage his own worker for loading and unloading work in view of the Full Bench decisions in v. **Raghavan Superintendent of Police** [1998(2) KLT 732] and in **Karunakara Kurup** v. **State of Kerala** [2001(1) KLT 215]. It is settled law that in an area where the scheme is not applicable, the employer can engage any headload worker of his own choice. Challenging Ext.P12, the petitioner filed an appeal as per Ext.P8 before the District Labour Officer, Kollam. 4. According to the petitioner, the petitioner's business WP(C) NO.34724 OF 2018 :-5-: establishment is situated in a non-scheme covered area and the petitioner is having every right to run his business engaging the workers of his own choice. 5. The fourth respondent-Board contended that the area wherein the petitioner's establishment is situated is within a scheme implemented area. There is pool of seven headload workers functioning in Kundara sub office of Kerala Headload Workers Welfare Board. According to the fourth respondent, by letter dated 7.2.2018, the petitioner's establishment was directed to get it registered under clause 7 of the Keala Headload Workers (Regulation of Employment and Welfare) Scheme,1983 (for short 'the Scheme,1983'). The fourth respondent further contended that the headload workers are getting around `15,000/- per month towards wages of loading and unloading work from the establishment. The workers demanded a bonus of `10,000/-, but the petitioner was only willing to pay of `8000/- towards bonus and hence their relationship became strained. 6. Respondents 6 to 8 entered appearance and the eighth WP(C) NO.34724 OF 2018 :-6-: respondent filed counter affidavit for and on behalf of respondents 6 and 7 as well. It is contended that the area where the petitioner's shop is situated is covered under the Scheme, 1983.The scheme was enforced in the area with effect from January 2018 as per Ext.R6(a). The headload workers belonging to the unions have already got registered as per the Scheme. The workers were also issued identity cards as per clause 6A(3) of the Scheme. Even before the enforcement of scheme, according to the party respondents, the workers were registered under Rule 26A(3) of the Rules. Such identity card issued to one of the workers is produced as Ext.R6(c). 7. Learned counsel for the party respondents contended that the petitioner has no case that any of the alleged permanent workers has got any registration under the Rule 26A of the Rules. Hence it is contended that permanent workers doing loading and unloading activities within the area in which the scheme is enforced are not entitled to police protection, if they are not registered under Rule 26A of the Rules. In other words, the WP(C) NO.34724 OF 2018 :-7-: petitioner cannot therefore contend or claim to have permanent employees for him to do the loading and unloading activities in this area where the scheme has been implemented and the workers are being pooled by the Welfare Board Sub Committee. 8. Referring to the Government Order and SRO issued in the year 2009, the learned Standing Counsel for the Board submits that the entire Kollam District stands covered under the Scheme but the functional operation will be effected only after considering the necessity and requirement in different areas. It was accordingly that the present area was also brought within the scheme as per Ext.R6(a). Per contra, the learned counsel for the petitioner submitted that the Board does not have any arbitrary power to extend the area as the power is exclusively vested on the Government in terms of Section 13 of the Kerala Headload Workers Act, 1978 (for short 'the Act'). The learned counsel for the petitioner further points out that after issuing the Government Order, the same has to be laid before the Assembly in the manner specified under sub-section (5) of Section 13 which process has WP(C) NO.34724 OF 2018 :-8-: not undergone and as such the relevant Government Order which has been produced as per Ext.R4(a) is not in operation and cannot be given effect to in order to confer any power upon the fourth respondent to have issued Ext.R6(a) notifying the functional operation in the particular area. In addition to the validity of Ext.R6(a), the learned counsel for the petitioner further submits that the dispute is essentially between the unions operating in the area where the petitioner's establishment is situated and the workers attached to the petitioner's establishment. To substantiate the contention that the area where the petitioner's establishment is situated is not a scheme covered area, the petitioner has relied on two unreported decisions of this Court in **Rahim** v. **The Superintendent of Police (Rural)** [WPC No. 22765/2018] and **Biju Samuel** v. **Station House Officer** [WPC No. 34001/2016], wherein the learned Standing Counsel appearing for the Welfare Board submitted that Panaveli within the limits of Vettikkavala Panchayath in Kollam District is not a scheme covered area. WP(C) NO.34724 OF 2018 :-9-: 9. Considering the facts and circumstances narrated above, that an appeal is pending before the District Labour Officer, Kollam, refusing to issue identity cards under Rule 26A of the Rules to the workers attached to the petitioner, we feel deem fit and proper to allow I.A.No.3 of 2019 filed by the petitioner to implead the District Labour Officer, Kollam as additional ninth respondent. The learned Government Pleader takes notice for the additional ninth respondent as well. After hearing all the parties concerned, we are of the view that it is just and proper to leave open the entire matter to the District Labour Officer, Kollam without deciding the validity of Ext.R4(a) in this writ petition. The District Labour Officer, Kollam is directed to decide the appeal preferred by the attached workers of the petitioner within three months from the date of receipt of a copy of this judgment taking into consideration of the contentions raised by the petitioners in this writ petition as the area where the petitioner's establishment is situated is not a scheme covered area. It is just and proper to continue the present status quo that is, petitioner's WP(C) NO.34724 OF 2018 :-10-: right to employ his own workers in his establishment without any change whatsoever, until the matter is adjudicated in appeal by the additional ninth respondent. The third respondent is directed to provide adequate police protection to the petitioner's business establishment from the threat or obstruction of respondents 6 to 8 or anybody claiming under them until the appeal is decided by the appellate authority in accordance with rules. The writ petition is disposed of as above. Sd/- **P.R.RAMACHANDRA MENON** , JUDGE sd/- **N.ANIL KUMAR** , JUDGE MBS/ WP(C) NO.34724 OF 2018 ## :-11-: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE PETITIONERS LICENSE OBTAINED FROM THE PANCHAYATH DATED 6.4.2018 IS PRODUCED. EXHIBIT P2 THE TRUE COPY OF THE PETITION SUBMITTED BEFORE THE 1ST RESPONDENT DATED 15.10.2018 IS PRODUCED.** **EXHIBIT P3 THE TRUE COPY OF THE PETITION SUBMITTED BEFORE THE 2ND RESPONDENT DATED 15.10.2018 IS PRODUCED.** **EXHIBIT P4 THE TRUE COPY OF THE PETITION SUBMITTED BEFORE THE 3RD RESPONDENT DATED 15.10.2018 IS PRODUCED.** EXHIBIT P5: **TRUE COPY OF THE FORM B-11 ISSUED BY THE 5TH RESPONDENT NUMBERED AS TP-772.** EXHIBIT P6: **TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS EMPLOYEES DATED 8.10.2018.** EXHIBIT P7: **TRUE COPY OF THE NOTICE OF THE 4TH RESPONDENT DTD.30.11.2018 NUMBERED AS REF.NO.E1/01/18.** EXHIBIT P8: **TRUE COPY OF THE APPEAL FILED BEFORE THE 9TH RESPONDENT BY THE PETITIONER DTD.10.1.2019. TRUE COPY OF THE NOTICE DTD.22.1.2019** EXHIBIT P9: **NUMBERED AS IR(2)/4797/18.** WP(C) NO.34724 OF 2018 :-12-: EXHIBIT P10: TRUE COPY OF THE REPLY DTD.31.01.2019 ACKNOWLEDGED BY THE ADDITIONAL 9TH RESPONDENT. EXHIBIT P11: TRUE COPY OF THE JUDGMENT OF THE SINGLE BENCH NUMBERED AS WP(C) NO. 35144/2018 DTD.8TH NOVEMBER,2018. EXHIBIT P12: TRUE COPY OF THE ORDER NUMBERED AS 632/2018 DTD.14.11.2018. EXHIBIT P13: TRUE COPY OF THE EXTRACT FROM THE WEBSITE OF THE KERALA LEGISLATURE WITH RESPECT TO THE BILLS PASSED FROM 20062011. EXHIBIT P14: TRUE COPY OF THE EXTRACT FROM THE KERALA LEGISLATURE WEBSITE REGARDING THE BILLS PUBLISHED. EXHIBIT P15: TRUE COPY OF THE KERALA HEADLOAD WORKERS AMENDMENT BILL 2010 NUMBERED AS 355. ## **RESPONDENTS' EXHIBITS:** EXHIBIT R4(a): COPY OF G.O(Rt) NO.1730/2009/LBR DTD.06.11.2009 ISSUED BY THE GOVERNMENT NOTIFYING THE SCHEME 1983 IN ENTIRE KOLLAM DISTRICT. EXHIBIT R6(a): TRUE COPY OF THE ORDER NO.E1/01/2018 IN THE PROCEEDINGS DTD.1.1.2018 ISSUED BY THE HEAD LOAD WORKERS WELFARE BOARD SUB COMMITTEE. EXT.R6(b): TRUE COPY OF THE IDENTITY CARD ISSUED TO ONE OF THE WORKERS IN THE AREA. EXT.R6(c): TRUE COPY OF THE IDENTITY CARD ISSUED IN FORM II TO ONE OF THE WORKERS UNDER THESE RESPONDENTS. EXT.R6(d); TRUE COPY OF THE SETTLEMENT DTD.12.10.2016 EXECUTED BETWEEN THE PETITIONER AND THE REPRESENTATIVES OF RESPONDENTS 6 TO 8.