Salin Jose S. Leyon Enterprises & Others v. District Labour Officer, Kerala Headload Workers Welfare Fund Board, Pathanamthitta; The Assistant Labour Officer, Adoor; The District Labour Officer, The Appellate Authority, Pathanamthitta

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **FRIDAY, THE 5[TH] DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943** ## **WP(C) NO. 11659 OF 2020** ## **PETITIONERS:** |**1**|**SALIN JOSE S.**| |---|---| ||**LEYON ENTERPORISES, G.F.8/97,**| ||**M.M.JUNCTION, PANDALAM - 689 501.**| |**2**|**BALARAJ R.**| ||**PADAPPURATHU VILA,**| ||**KARUMANOOR, PARASALA P.O. - 695 502.**| |**3**|**AJI N.**| ||**KURUVIPAZHANJI VILA VEEDU,**| ||**KARUMANOOR, PARASSALA P.O. - 695 502.**| |**4**|**SAJI N.**| ||**ABISHA BHAVAN,**| ||**MURIANKARA, PARASALA P.O. - 695 502.**| |**5**|**DHAS V.**| ||**E.V.BHAVAN, THETTIKKUZHI,**| ||**KODAVILAKOM, PARASALA P.O. - 695 502.**| ||**BY ADVS.**| ||**SRI.KURIAN GEORGE KANNANTHANAM (SR.)**| ||**SRI.THOMAS GEORGE**| ## **RESPONDENTS:** **1 THE DISTRICT LABOUR OFFICER/THE CHAIRPERSON KERALA HEADLOAD WORKERS WELFARE FUND BOARD, PATHANAMTHITTA, PIN - 689 645.** W.P.(C) No.11659/20 ## **-:2:-** **2 THE ASSISTANT LABOUR OFFICER ADOOR, PIN - 691 523.** - ***3 THE DISTRICT LABOUR OFFICER, THE APPELLATE AUTHORITY, PATHANAMTHITTA, PIN - 689645** ***(ADDL. R3 IS IMPLEADED AS PER ORDER DATED 29.07.2020 IN IA NO. 2/2020 IN WPC NO.11659/2020. BY ADVS. SRI.K.SIJU SMT.SABEENA P.ISMAIL, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.10.2021, THE COURT ON 05.11.2021 DELIVERED THE FOLLOWING:** W.P.(C) No.11659/20 ## **-:3:-** ## **BECHU KURIAN THOMAS, J. -----------------------------------W.P.(C) No.11659 of 2020** **--------------------------------------** Dated this the 5[th] day of November, 2021 ## **JUDGMENT** Applications for registration as headload workers filed by petitioners 2 to 5 were rejected by the registering authority for reasons including the often repeated statement that existing registered headload workers attached to the welfare board will be prejudicially affected. The joint appeal preferred by the workers together was also rejected stating the same reason. The applicants for registration as headload workers along with their employer has approached this Court challenging the order rejecting their applications. 2. First petitioner is carrying on the business in sale of cement products, concrete windows, door frames, decorative pillars, clay tiles, ceramic tiles etc, under the name and style ‘Leyon Enterprises’ at Adoor, Pathanamthitta District, in Kerala. He also runs a unit for manufacturing the aforesaid products. Petitioners 2 to 5 are the ## W.P.(C) No.11659/20 ## **-:4:-** permanent workers employed by the first petitioner. The establishment of the first petitioner is situated in a scheme covered area. The employer had expressed his willingness to engage petitioners 2 to 5 for the loading and unloading work in his establishment and the workers also agreed to offer their services as headload workers. It was on the said mutual consent that applications were filed by petitioners 2 to 5 for registration as headload workers. 3. In fact, first petitioner's claim that these employees who are seeking registration as headload workers were regularly engaged for loading and unloading work, even prior to the year 2017. First petitioners claimed that he was maintaining all registers and other records relating to employment of the permanent employees. It is further pleaded that the employees of the first petitioner who were doing loading and unloading work, were not registered earlier, since the area was not an area covered under the scheme notified under the Kerala Headload Workers Act, 1978 (for short the Act). However, applications were filed by petitioners 2 to 5 on 02-12-2019 for registration as evidenced by Ext.P4, and while the applications were pending, a show-cause notice was issued to the first petitioner ## W.P.(C) No.11659/20 ## **-:5:-** proposing penal action for not registering under the scheme and for not utilizing the registered workers for loading and unloading works. 4. In the meantime, by order dated 27-01-2020, the second respondent rejected the applications of petitioners 2 to 5. While rejecting the applications, it was observed that the predominant work of the employees of the first petitioner was not headload work and that if registration is granted for the permanent workers of the first petitioner, the existing registered headload workers will lose their employment opportunities and further, there was no necessity to have four permanent workers employed for headload work, when the loading and unloading work in the establishment was only once a week. It was also observed that since the employer had not maintained the records required under law, there was no evidence to show that the first petitioner had employed any headload workers in his establishment. 5. The appeal preferred by petitioners 2 to 5 before the first respondent was rejected by Ext.P15 order dated 18-05-2020. The reasons were more of a repetition of the order of the registering authority. It was stated that the Act was enacted only for the benefit of headload workers and that even though applicants had given ## W.P.(C) No.11659/20 ## **-:6:-** statements to the effect that they were doing headload work in the establishment, the appellate authority was satisfied that the predominant work of the applicants was not headload work and further that if registration was granted to the applicants, it will prejudice the existing job opportunities of the attached workers of the welfare board. 6. A counter affidavit has been filed by the first respondent stating that the establishment of the first petitioner is situated in a area covered under the headload workers scheme and that the attempt to obtain registration under rule 26A is with an intention to evade the requirement to engage the registered headload workers attached to the welfare board. It was further stated that an inspection was conducted in the establishment on 23-01-2020, on which date, it was noticed that one guest worker was carrying out the loading and unloading work in the establishment, since the petitioners 2 to 5 had gone for a marriage. After first respondent also pleaded that during inspection the first petitioner had failed to produce statutory registers maintained under the Act, various records were produced by the first petitioner and the same are retained by the court. 7. A statement has been filed on behalf of the welfare board W.P.(C) No.11659/20 ## **-:7:-** stating that the establishment of the first petitioner was coming in an area known as a Medical Mission pool and that there were six registered workers in the pool. After referring to clause 6(2) of the Scheme of 1983, it was stated that, in areas where the scheme applies, an employer cannot be allowed to utilize the services of the headload worker who is not registered under the provisions of the scheme and the occasional headload work required in the establishment could easily be carried out by the existing registered workers. It was further pleaded that petitioners 2 to 5 are not principally employed for headload work in the establishment and hence they cannot come within the purview of the definition of the Act. It was also stated that members of pool No.48 of Vennikulam were regularly engaged by the first petitioner and also that granting registration to the permanent workers of the first petitioner will adversely affect the job opportunities of registered workers attached to the Board and that the Registering Authority had issued orders declining the application based upon the objection raised by the fourth respondent- the Kerala Headload Workers Welfare Board. 8. I have heard Adv. Thomas George, learned counsel for the petitioners, Adv. K.Siju, learned counsel for the first respondent and ## W.P.(C) No.11659/20 ## **-:8:-** Adv.Sabeena P. Ismail, learned Government Pleader for respondents 2 and 3. 9. There is no dispute that petitioners 2 to 5 are working in the establishment of the first petitioner, that too, as permanent workers. None has disputed the capacity of petitioners 2 to 5 to carry out loading and unloading works. Since petitioners 2 to 5 had applied for registering themselves as headload workers and the fact that the first petitioner expressed his willingness to employ them as headload workers in his establishment itself is sufficient indication, that they are capable and willing to do loading and unloading works in the first petitioner's establishment. 10. Registration to petitioners 2 to 5 was denied for the reason that if registration is granted to them, the same will affect the job opportunities of the headload workers attached to the Kerala Headload Workers Welfare Board and also that the predominant work of petitioners 2 to 5 was not headload work. In my considered view, the reasons stated by the registering authority as well as the appellate authority, to deny registration to the employees of the first petitioner, are perverse and not valid in the eyes of law. W.P.(C) No.11659/20 ## **-:9:-** 11. The specific case of the petitioners is that the area where the first petitioner’s establishment is situated was notified as an area coming under the scheme only in 2019, while petitioners 2 to 5 had been working in the establishment as headload workers, even prior to the coming into force of the scheme and therefore it cannot be held that petitioners 2 to 5 had not worked as headload workers. 12. Even otherwise, a reading of the order of the appellate authority as well as of the registering authority would reveal that petitioners 2 to 5 were indulging in loading and unloading work since it was observed that the work of loading and unloading was not their predominant work. In such circumstances, there is no merit in the contention of the respondents that petitioners 2 to 5 have not done any loading and unloading work. 13. The right of an employer to engage his own permanent employees as headload workers, in an area covered by the headload workers scheme, under the Act, is subject to only one requirement - the employees must be registered as headload workers under the Act. This Court had in **Rajeev v. District Labour Officer** (2010 (4) KLT 783) as well as in **Manzoor v. District Labour Officer** (2021 (5) ## W.P.(C) No.11659/20 ## **-:10:-** KLT 554) held that, while considering the application for registration as headload workers under Rule 26A of the Rules, the lookout of the Registering Authority is not whether the applicant was a headload worker or not prior to such registration, but whether the employer is willing to engage the applicant as a headload worker and whether he has the physique for headload work. It was further held that, there was no requirement under law, that the applicant must have been working in the establishment as a headload worker for becoming eligible for such registration. The fact that the applications were submitted by the employees is evidence of the willingness of the employees to work as headload workers. The nature of work of the applicants prior to the application has no significance as they could not have worked as headload workers or do headload work in a scheme covered area without obtaining prior registration. 14. In another decision in **Prasanna Kumar V. District Labour Officer** (W.P.(C)No.6287 of 2021), it was observed by this Court as follows: _“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_ W.P.(C) No.11659/20 ## **-:11:-** _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 headload worker. If the restriction of registration curtails the 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._ 15. The aforesaid decision clearly declared the right of an employee, attached to an establishment to obtain registration as a headload worker under the Act and its Rules, even in scheme covered areas. 16. When the employees of the first petitioner have expressed their inclination to work as headload workers and even applied for registration, there is no legal justification, as has happened in the present case, to deny registration to such ## W.P.(C) No.11659/20 **-:12:-** employees, as headload workers under the Act and Rules. The reasons stated by the Registering Authority, as well as the Appellate Authority, to deny registration to the employees of the petitioner, as mentioned earlier are perverse and not valid in the eyes of law. The reduction of income or job opportunities for existing headload workers is not a ground under law, for denying registration to workers, who are willing to do loading and unloading works. 17. In this context, it is relevant to mention that, pursuant to the order dated 29-07-2020 directing production of records of the first petitioner, the same were produced on 11-08-2020 and are retained by the Registry of the Court. The staff attendance registers of 2017 to 2021 produced by the first petitioner shows that the employees were engaged as workers in first petitioner's establishment. The wage register and salary receipts also show the same thing. However, the said documents are unilateral and reference or reliance upon them is not required in the light of the proposition of law adopted in this case. 18. In view of the above, Ext.P8 and Ext.P15 are liable to be set aside. It is declared that petitioners 2 to 5 are entitled to obtain registration as headload workers, attached to the establishment of W.P.(C) No.11659/20 ## **-:13:-** the first petitioner. 19. Accordingly, there will be a direction to the third respondent to grant registration to petitioners 2 to 5 as headload workers, attached to the first petitioner and issue necessary identity cards to them as contemplated under Rule 26A 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. The writ petition is allowed as above. ## **Sd/-** **BECHU KURIAN THOMAS JUDGE** vps ## W.P.(C) No.11659/20 ## **-:14:-** ## **APPENDIX OF WP(C) 11659/2020** **PETITIONER'S/S' EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE D & O LICENSE FOR THE YEAR 2019-20 ISSUED BY THE PANDALAM MUNICIPALITY.** **EXHIBIT P2 A TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 6/12/19 ISSUED BY ASST. LABOUR OFFICER, ADOOR.** - **EXHIBIT P3 A TRUE COPY OF THE LETTER DATED 18/11/2019 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P4 A TRUE COPY OF THE APPLICATIONS DATED 2/12/19 OF THE PETITIONERS 2 TO 5.** **EXHIBIT P5 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 01/01/2020 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF THE REPLY DATED 06/01/2020 GIVEN TO THE 2ND RESPONDENT.** - **EXHIBIT P7 A TRUE COPY OF THE JUDGMENT DATED 10/01/2020 IN W.P.498/2020.** - **EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 27/01/2020 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P9 A TRUE COPY OF THE COMMUNICATION DATED 09/01/2020 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P10 A TRUE COPY OF THE DEPOSITIONS 22/01/2020 OF THE PETITIONERS.** - **EXHIBIT P11 A TRUE COPY OF THE APPLICATION DATED 18/02/2020 GIVEN BY THE 1ST PETITIONER.** - **EXHIBIT P12 A TRUE COPY OF THE COMMUNICATION DATED 3/3/2020 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P13 A TRUE COPY OF THE APPEAL MEMORANDUM DATED 18/02/2020 SUBMITTED BEFORE THE 1ST RESPONDENT.** **EXHIBIT P14** **A TRUE COPY OF THE HEARING NOTES DATED** W.P.(C) No.11659/20 ## **-:15:-** ||**5/3/2020 OF THE PETITIONERS.**| |---|---| |**EXHIBIT P15**|**A TRUE COPY OF THE ORDER DATED**| ||**18/05/2020 ISSUED BY THE 1ST RESPONDENT.**| |**EXHIBIT P16**|**A TRUE COPY OF THE COMMUNICATION DATED**| ||**18/1/2021 ISSUED BY THE 1ST RESPONDENT**| ||**PETITON FOR STAY**|