Prasanna Kumar R., Sivadasan Chundaran and Gemini Enterprises v. District Labour Officer 1st Circle Kannur; Assistant Labour Officer; Chairman, Kerala Headload Workers Welfare Board; District Police Chief; Circle Inspector of Police, Thalassery; Chumattutho zhobil Ali Union; Secretary, CITU

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **WEDNESDAY, THE 6[TH] DAY OF OCTOBER 2021 / 14TH ASWINA, 1943** ## **WP(C) NO. 6287 OF 2021** ## **PETITIONER:** **1 PRASANNA KUMAR R., AGED 54 YEARS, S/O.SHANTHA, HEAD LOAD WORKER BY PROFESSION, PERMANENTLY RESIDING AT RAYAROTH HOUSE, KADAMBOOR, POST EDAKKAD-670 663, KANNUR DISTRICT, KERALA 2 SIVADASAN CHUNDARAN AGED 59 YEARS, S/O. KUNHAMBU, HEAD LOAD WORKER BY PROFESSION, PERMANENTLY RESIDING AT LAKSHMI, POST KUTTIKAKAM, -670 633, VIA EDAKKAD, KANNUR DISTRICT, KERALA 3 GEMINI ENTERPRISES, REP BY ITS MANAGING PARTNER SANJEEV KUMAR, AGED 51 YEARS, DOOR NO.45/389 & 9/16, THALASSERY-670 101, KANNUR DISTRICT, KERALA** **BY ADVS. SRI.T.ASAF ALI SMT.LALIZA.T.Y.** ## **RESPONDENT/S:** - **1 THE DISTRICT LABOUR OFFICER 1ST CIRCLE, KANNUR-670003** - **2 THE ASSISTANT LABOUR OFFICER,** **-:2:-** W.P.(C) No.6287/21 **THALASSERY, 1ST CIRCLE, THALASSERY-670 101** - **3 THE CHAIRMAN, KERALA HEADLOAD WORKERS WELFARE BOARD, KANNUR-670 003** - **4 THE DISTRICT POLICE CHIEF, KANNUR-670 003** - **5 THE CIRCLE INSPECTOR OF POLICE THALASSERY POLICE STATION, THALASSERY-670101** - **6 CHUMATTUTHOZHILALI UNION,** - **MAIN ROAD, NEAR MATTAMPURAMPALLY, REPRESENTED BY ITS SECRETARY, POST THALASSERY-670 101** - **7 THE SECRETARY,** - **CITU, CH KANARAN MEMORAIL, TC ROAD, THALASSERY-670 101** - **BY ADVS.** **R1,R2,R4 & R5 SMT.SABEENA P. ISMAIL, GOVT. PLEADER R3 BY SRI.THOMAS ABRAHAM** - **R6 & R7 BY SRI.M.SASINDRAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.10.2021, THE COURT ON 06.10.2021 DELIVERED THE FOLLOWING:** **-:3:-** W.P.(C) No.6287/21 ## **BECHU KURIAN THOMAS, J. -----------------------------------W.P.(C) No.6287 of 2021 --------------------------------------** Dated this the 6[th] day of October, 2021 ## **JUDGMENT** The question of registration of an employer's permanent workers as headload workers have yet again come to the fore. The applications of two workers were rejected solely on the reason that the registration, if granted, will have the tendency to affect the work of the existing headload workers. The permanent workers as well as the employer have together preferred this writ petition challenging the orders refusing registration as headload workers. 2. Applications preferred by first and second petitioners for registration as headload workers attached to the establishment of the third petitioner were rejected by Ext.P7 order. As mentioned earlier, the sole reason stated by the second respondent while rejecting the applications was that if registration is granted, it may affect the work of the existing headload workers in the scheme covered area. The appellate authority also by Ext.P8 order rejected the appeal preferred by the petitioners on the same ground and hence this writ petition is W.P.(C) No.6287/21 **-:4:-** preferred, seeking to set aside Ext.P7 and Ext.P8 orders and to direct registration of the first and second petitioners as headload workers and to issue the identity card as provided under Rule 26A of the Kerala Headload Workers Rules, 1981. Police protection is also claimed by the petitioners to carry out peaceful headload work in the business premises of the third petitioner, citing the reason of aggressive and violent members of the union of headload workers. 3. Adv.T.Asaf Ali, the learned counsel for the petitioners vehemently contends that the orders rejecting the application filed by first and second petitioners for registration as headload workers are patently absurd and contrary to the central principles of law laid down by this Court in the decisions in **Rajeev v. District Labour Officer** (2010 (4) KLT 783) as well as the recent decision in **Manzoor v. District Labour Officer** (2021 (5) KLT 554). It is also contended that respondents 6 and 7 are very aggressive and if police protection is not granted for doing the loading and unloading work, even after registration of third petitioner’s permanent workers as headload workers, there will be a law and order situation. Petitioners therefore urge this Court to direct the grant of police protection too. 4. On the other hand, Smt. Sabeena P. Ismail, the learned **-:5:-** W.P.(C) No.6287/21 Government Pleader appearing on behalf of respondents 1, 2, 4 and 5, Adv. Thomas Abraham, learned counsel appearing on behalf of 3[rd] respondent and Adv.M.Sasindran, learned counsel appearing on behalf of respondents 6 and 7, opposed the contentions of the writ petitioners and stated that the registration of first and second petitioners as headload workers will affect the existing workers. Relying upon the pleading in the statement filed on behalf of the third respondent, it was pointed out that first and second petitioners have never been engaged by the third petitioner in his establishment for the purpose of loading or unloading work. 5. This Court had recently held in **Manzoor v. District Labour Officer** (supra) that, registration of a headload worker to the establishment does not depend upon prior work as a headload worker. The only requirement contemplated under the Kerala Headload Workers Act, 1978 (for short 'the Act) and as laid down by this court in **Rajeev v. District Labour officer and others** (2010 (4) KLT 783) is that the applicant must have the necessary physique to do loading and unloading work. Physique to do loading and unloading work has to be appreciated objectively. When a worker expresses his willingness to work as a headload worker and the **-:6:-** W.P.(C) No.6287/21 owner of an establishment agrees to engage him as a headload worker, the same is sufficient to treat him as a headload worker. 6. In the decision in **Gangadharan v. Abdul Nasir** (2016 (4) KLT 592), it was held that the existing registered workers have no right to object to the registration of other workers as headload workers. Viewed in the above light and the principles laid down, it is evident that the reasons given in Ext.P7 and Ext.P8 to reject the application of the first and second petitioners for registration as headload workers are perverse and have no legal basis. 7. In this context, it may be worthwhile to remind ourselves that every person has a fundamental right under Article 19(1)(g) to carry on any occupation and the same can be subjected only to reasonable restrictions as provided for under Article 19(6). The work of loading and unloading is not a work that requires any specialised experience or technical or educational qualifications. 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 W.P.(C) No.6287/21 **-:7:-** 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 employer's consent is sufficient to grant registration. 8. In the aforesaid perspective, when the facts of this case are analysed, it is seen that Ext.P2 and Ext.P2(a) are service records of the first and second petitioners, which are countersigned by the second respondent. A perusal of Ext.P2 and Ext.P2(a) reveals that the third petitioner has engaged the first and second petitioners as headload workers in his establishment. Further, through their applications, they have expressed their willingness to do headload work and the employer has also come on record with his consent to employ. It is evident that the first and second petitioners are entitled **-:8:-** W.P.(C) No.6287/21 to be registered as headload workers attached to the establishment of the third respondent. 9. Accordingly, I set aside Ext.P7 and Ext.P8 and direct the second respondent to register the first and second petitioners as headload workers and issue the necessary identity cards as contemplated under Rule 26A(3) of the Kerala Headload Workers Rules, 1981 in a time-bound manner, at any rate, within a period of one month from the date of receipt of a copy of this judgment. Once such registration is granted, respondents four and five shall also afford adequate and effective police protection to the petitioners to carry out their headload work without any interference or obstruction from respondents six, seven or anybody acting under them, if any application to that effect is filed with the supporting documents. The writ petition is allowed as above. ## **Sd/-** **BECHU KURIAN THOMAS JUDGE** vps ## W.P.(C) No.6287/21 ## **-:9:-** ## **APPENDIX OF WP(C) 6287/2021** ## **PETITIONER'S/S' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE (WITH TRUE ENGLISH TRANSLATION) ISSUED TO THE 3RD PETITIONER UNDER KERALA SHOPS AND ESTABLISHMENT ACT 1960 VIDE NO.SH131270014298 DATED 10.12.2019 RELATING TO THE DOOR NO.45/389 EXHIBIT P1(a) TRUE COPY OF THE REGISTRATION CERTIFICATE (WITH TRUE ENGLISH TRANSLATION) ISSUED TO THE 3RD PETITIONER UNDER KERALA SHOPS AND ESTABLISHMENT ACT 1960 VIDE NO.SH131270014297 DATED 10.12.2019 RELATING TO THE DOOR NO.9/16 EXHIBIT P2 TRUE COPY OF THE SERVICE RECORD OF THE 1ST PETITIONER AS MAINTAINED UNDER THE KERALA SHOPS AND COMMERCIAL ESTABLISHMENT RULES 1964 BY THE 3RD PETITIONER** - **EXHIBIT P2(a) TRUE COPY OF THE SERVICE RECORD OF THE 2ND PETITIONER** - **EXHIBIT P3 TRUE COPY OF THE MUSTER ROLL OF THE PETITIONERS NOS 1 AND 2 MAINTAINED BY THE 3RD RESPONDENT** - **EXHIBIT P4 TRUE COPY OF THE WAGE REGISTER RELATING TO THE PETITIONER NOS 1 AND 2 MAINTAINED BY THE 3RD PETITIONER -FIRM** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 22NA JANUARY 2020 MADE IN WPC NO.1059 OF 2020 OF THIS HON'BLE COURT** - **EXHIBIT P6 TRUE COPY OF THE APPLICATION MADE BY THE 1ST PETITIONER TO THE 2ND RESPONDENT FOR REGISTRATION AS HEADLOADED WORKER** W.P.(C) No.6287/21 ## **-:10:-** **EXHIBIT P6(a)** **TRUE COPY OF THE APPLICATION MADE BY THE 2ND PETITIONER TO THE 2ND RESPONDENT FOR REGISTRATION AS HEADLOADED WORKER** **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 11TH FEBRUARY 2020 (WITH ENGLISH TRANSLATION) ISSUED BY THE 3RD RESPONDENT EXHIBIT P8 SERVED COPY OF THE ORDER DATED 22ND JANUARY 2021 (WITH ENGLISH TRANSLATION) ISSUED BY THE 1ST RESPONDENT EXHIBIT P9 TRUE COPY OF THE CITATION 1998 KHC 447 EXHIBIT P10 TRUE COPY OF THE CITATION 2010 (4) KHC 757 EXHIBIT P11 TRUE COPY OF THE CITATION 2012 KHC 2477**