Sanal Kumar B. v. State of Kerala

**-:1:-** W.P.(C) No.25983/19 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 17[TH] DAY OF DECEMBER 2021 / 26TH AGRAHAYANA,** **1943** ## **WP(C) NO. 25983 OF 2019** ## **PETITIONER:** SANAL KUMAR B. AGED 35 YEARS S/O. BALAKRISHNAN, ERATHUMADAVILAKOM, VETTAMANGALAM, RUSSELPURAM P. O., NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT, PIN - 695001. BY ADV K.B.PRADEEP ## **RESPONDENTS:** > 1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, LABOUR DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN - 695 001. > 2 DISTRICT LABOUR OFFICER OFFICE OF THE DISTRICT LABOUR OFFICER, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN - 695036. > 3 THE ASSISTANT LABOUR OFFICER OFFICE OF THE ASSISTANT LABOUR OFFICER, GOVERNMENT OF KERALA, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN - 695 121. BY ADV GOVERNMENT PLEADER W.P.(C) No.25983/19 **-:2:-** THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.11.2021 THE COURT ON 17.12.2021 DELIVERED THE FOLLOWING: **-:3:-** W.P.(C) No.25983/19 ## **BECHU KURIAN THOMAS, J** **------------------------** **W.P.(C)NO.25983 OF 2019** _**--------------------------**_ **Dated this the 17[th] day of December, 2021** ## **JUDGMENT** Petitioner is a manual labourer. He had not mastered sufficient education and hence he desired to register himself as a headload worker. An application for registration as a headload worker was submitted by him on 25.10.2017. He claims that he is healthy and that he ekes out his livelihood, by doing headload work. 2. Petitioner also alleges that the trade unions led by leading political parties exerted their influence over the functionaries under the Kerala Headload Workers Act, 1978 (for short 'the Act') and often ensure that new registrations are not granted in terms of Rule 26A of the Kerala Headload Workers Rules, 1981 (for short 'the Rules'). 3. Since petitioner's application for registration as a headload worker under Rule 26A was not considered, he approached this Court and obtained a direction for consideration W.P.(C) No.25983/19 ## **-:4:-** of his application by judgment dated 13.12.2018. Thereafter, the third respondent considered the application of the petitioner and issued Ext.P2 order rejecting the claim of the petitioner. The reasons stated for rejection, according to the petitioner, are totally perverse since, the third respondent has, without any basis, concluded that petitioner had never indulged in headload work. It was also alleged that the conclusion that new headload workers are not required in the area and that if registration cards are issued to new workers, the existing peaceful atmosphere amongst the workers will be affected, are all matters that could not have been the basis for rejecting the application of the petitioner. 4. Petitioner further pleads that the appeal preferred by him was rejected by a mere statement that petitioner had not produced any evidence to prove the incorrectness of the reasons given by the third respondent. It is in such circumstances that petitioner approached this Court challenging the orders of the second and third respondents. 5. A statement has been filed on behalf of the second respondent pleading that the area 'Rasalpuram' is having only a W.P.(C) No.25983/19 ## **-:5:-** private establishment other than KSBC and the scope for headload work in the said area is very limited. It was further stated by the second respondent that, issuing more identity cards will reduce the income of the existing workers and that the existing workers in the area are sufficient for the work available. 6. The circumstances mentioned above indicate a classic instance of the fundamental right of a person to do any work of his choice being infringed upon. The hurdle to do a work of the choice of the petitioner is attributable to the restriction imposed by the Rules and the requirement of registration as a headload worker provided in the aforesaid Rules. 7. This Court had, in a recent judgment in **Manzoor v.** **District Labour Officer** [2021 (5) KLT 554] held, that the requirement of registration does not depend upon the prior work as headload worker and the only requirement for the applicant is to possess necessary physique to do loading and unloading works and the willingness to do such work. 8. In this context it may be worthwhile to remember that every person has a fundamental right under Article 19(1)(g) to carry on any occupation and the same can be subjected only W.P.(C) No.25983/19 ## **-:6:-** to reasonable restrictions as provided for under Article 19(6). The work of loading and unloading is not a work that requires any specialized experience or technical or educational qualifications. Any person, who is willing to do loading and unloading work, must have the freedom to choose to do such work, unless it is curtailed by a reasonable restriction. The restriction that is introduced through the Act, in a scheme covered area, for doing headload work, is the requirement of registration as a headload worker. If the restriction in the form of registration curtails the fundamental right of an 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. Otherwise, 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. 9. The decision of the Full Bench in **Sureshkumar R. and Others v. District Labour Officer, Tvm and Others** (2021 (2) KHC 215), was considering the question whether the existing cardholders have a right of appeal against the grant of a W.P.(C) No.25983/19 ## **-:7:-** fresh registration. The said decision does not lay down a proposition that in a scheme covered area a person cannot obtain registration under Rule 26A of the Rules. Thus, the said decision has no applicability to the facts of the present case. 10. Petitioner's application for registration as a headload worker could not have been rejected on the ground that the petitioner had not worked as a headload worker earlier. The decisions in **Rajeev v. District Labour Officer** [2010 (4) KLT 783] and that of **Manzoor** (supra) have considered the situation on whether there is any requirement under the Act to have prior experience. Further, the loss of employment opportunities for the existing registered workers, if new registrations are granted is not a tenable contention under law. If such reasoning is accepted, every person in every profession, vocation or employment would be able to object to new entrants being infused into their professions, vocations or employment. Such reasoning is against the principles of equality contemplated under Article 14 of the Constitution of India. Of course, those existing workers have a right of appeal. 11. On a consideration made as above, this Court is of **-:8:-** W.P.(C) No.25983/19 the opinion that the rejection of application of the petitioner for registration as a headload worker is wrong in law and interferes with the legal and constitutional rights of the petitioner. Therefore Ext.P2 and Ext.P3 are set aside and the third respondent is directed to consider and pass fresh orders on the application of the petitioner within a period of 30 days from the date of receipt of a copy of this judgment and issue appropriate identity card to the petitioner as sought for. The writ petition is allowed as above. **BECHU KURIAN THOMAS JUDGE** AJ W.P.(C) No.25983/19 ## **-:9:-** ## **APPENDIX OF WP(C) 25983/2019** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PETITIONER'S ONLINE APPLICATION DATED 25.10.2017 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT EXHIBIT P2 TRUE COPY OF THE ORDER DATED 16.02.2019 OF THE ASSISTANT LABOUR OFFICER, NEYYATINKARA. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 11.07.2019 OF THE DISTRICT LABOUR OFFICER, THIRUVANANTHAPURAM