Shaharathali V.H. and Others v. District Labour Officer, Malappuram; Assistant Labour Officer, Perinthalmanna; Kerala Headload Workers Welfare Board

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945`** ## **`WP(C) NO. 3455 OF 2024`** ## **`PETITIONERS:`** - **`1 SHAHARATHALI V.H AGED 44 YEARS`** - **`S/O HAMZA,RESIDING AT VAKAYIL HOUSE, KAITHACHIRA P.O., MANNARKKAD, PALAKKAD DISTRICT, PIN - 678582`** ``` 2ASKARALI AGED40YEARS S/OHAMZA,RESIDINGATKUNNATHUHOUSE,PATHAIKARA P.O.,PERINTALMANNA,PALAKKADDISTRICT,PIN-679322 ``` ``` 3RASHEEDK AGED51YEARS S/OABDU,RESIDINGATKARKKIDAMKUNNUHOUSE, PUNCHAKODE,THENGARAP.O.,MANNARKKAD,PALAKKAD DISTRICT,PIN-678761 ``` - **`4 SHAHARBAN.V AGED 37 YEARS`** ``` W/OSHAHARATHALIV.H.,RESIDINGATVAKAYILHOUSE, KAITHACHIRAP.O.,MANNARKKAD,PALAKKADDISTRICT, PIN-678582 ``` ``` BYADVS. T.C.SURESHMENON B.DEEPAK ``` ``` RESPONDENTS: ``` - **`1 THE DISTRICT LABOUR OFFICER CIVIL STATION, MALAPPURAM, PIN - 676505`** - **`2 THE ASSISTANT LABOUR OFFICER PERINTHALMANNA, PALAKKAD DISTRICT, PIN - 679322`** WPC 3455 of 2024 2 ``` 3THEKERALAHEADLOADWORKERSWELFAREBOARD MANJERI,REPRESENTEDBYITSCHAIRMAN,PIN-676121 ``` ``` BYADVThomasAbraham ``` ``` SMTCSSHEEJA,SR.GOVERNMENTPLEADER SRITHOMASABRAHAM,SCFORKERALAHEADLOADWORKERS WELFAREFUNDBOARD. ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 12.03.2024,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` WPC 3455 of 2024 3 ## **JUDGMENT** This writ petition is filed under Article 226 of the Constitution of India seeking to quash Ext.P11 order issued by the District Labour Officer by which the application for registration submitted by the petitioners 1 to 3 under Rule 26A of the Headload Workers Rules in ‘Perinthalmanna Traders’, a grocery shop run by the 4th petitioner was rejected. The petitioner also seeks for issuance of directions to the respondents to grant registration to the workers. 2. Short facts of the case are as under: a) The 4th petitioner is running a grocery shop after securing a license from the local authority. The 1[st] petitioner is her husband. They contend that from the commencement of the business, petitioners 1 to 3 have been doing the loading and unloading work in the establishment, they being the attached workers. Seeking registration under Rule 26A of the Rules, an application was filed before the 2nd respondent. The application was rejected by Ext.P2 order on the ground that the establishment has not yet started functioning. b) Challenging the said order, an appeal was preferred by the petitioners 1 to 3 before the District Labour Officer, the 1st respondent WPC 3455 of 2024 4 herein. The appeal was, however, rejected on the grounds that registered headload workers are carrying out the loading and unloading work in the establishment, and granting registration to attached workers would deprive them of their jobs. c) The above order was challenged before this Court, and by Ext.P5 judgment, this Court held that in view of the law laid down in **Brijesh John and Ors. v. Assistant Labour Officer and Ors. [2022 (1) KLT 473]** , it was no longer open to reject the application on the ground that employing attached workers would deprive the work for the existing headload workers. As it was brought to the notice of the court that the establishment had not commenced functioning, the petitioners were permitted to submit fresh applications for registration in terms of Rule 27A of the Headload Workers Rules, and the respondents were directed to consider the same on merits dehors the impugned orders. d) The petitioners state that in tune with the directions issued by this Court, Exts.P6 to P8 applications were submitted. However, by Ext.P9 order, the 2nd respondent rejected the applications, holding that if registration is granted, it would have a bearing on the livelihood of the pool workers. It was also found that the petitioners 1 to 3 had only worked for a month and thereafter, the registered headload workers were carrying out the loading and unloading activities. WPC 3455 of 2024 5 e) Being aggrieved by Ext.P9 order issued by the 2nd respondent, an appeal was preferred before the DLO. However, by Ext.P11 order, the request for registration was rejected stating the very same reason. 3. The petitioners contend that even the request for registration made by the 1[st] petitioner, who is the husband of the licensee, was denied on the ground that he had not worked. According to the 4th petitioner, she is forced to employ her own attached workers and, at the same time, pay a sum of Rs.50,000/- every month to the registered pool workers. It is stated that the order passed by the ALO, as confirmed by the DLO, cannot be sustained under the law and goes against the law laid down by this Court. It is on these assertions that this writ petition is filed seeking directions. 4. A statement has been filed by the learned Standing Counsel as directed by this Court. It is stated that ‘Perinthalmanna Traders’ is situated in a Scheme implemented area under the Perinthalmanna sub-office of the respondent Board. There are about 31 registered pool workers in Pool 1A and 1B. It is stated that the workers of Pool 1A were doing the headload work in the 4[th] petitioner’s establishment since the day of the commencement of the operation. It is further stated that in Ext.P10 appeal filed by the petitioners 1 to 3, they had stated that they WPC 3455 of 2024 6 had been working in the establishment since 18.2.2020 and they were being paid monthly wages. However, in the statement given by the 4th petitioner before the 2nd respondent, a version that was variant to the same was stated. It is further stated that petitioners 2 and 3 are holders of 26A cards issued by the ALO, Mannarkad, in respect of a different establishment and, therefore, are not eligible for another 26A card. 5. Sri. T. C Suresh Menon would refer to the observations made by a Division Bench of this Court in **Kerala Headload Workers Welfare Fund Board v. Nishad M.B. and Others** [2022 (5) KHC 367] and in **Brijesh John and Others vs. Asst. Labour Officer and Others** , [2022 (1) KLT 473], and it is argued that despite specific directions issued by this Court, the respondents have rejected the application for registration by holding that granting registration to attached workers would deprive the pool workers of their means of livelihood. It is further stated that despite the fact that the petitioner had produced Ext.P12 wages register, Exts.P13 to P15 service record, and Ext.P16 muster roll, the 1st respondent has taken a stand that petitioners 1 to 3 have never rendered any work in the establishment. According to the learned counsel, there is absolutely no justification on the part of the 1st respondent in rejecting the application for the reasons given in the order. WPC 3455 of 2024 7 6. In response, Sri. Thomas Abraham, the learned counsel appearing for the Kerala Headload Workers Welfare Board submitted that while the statement of the 4th petitioner was recorded, she had given a statement which is at variance with the averments made in the writ petition. It is further submitted that no materials were placed before the Labour authorities to substantiate that the petitioners 2 and 3 had worked in the establishment during the period in question. It is further submitted that petitioners 2 and 3 are persons who had secured 26A cards in respect of some other establishment and are not entitled to secure fresh 26A cards. 7. In response, it is submitted by the learned counsel appearing for the petitioners that the establishment at Mannarkad, in respect of which petitioners 2 and 3 were issued with 26A cards, has closed down. It is further submitted that there is no embargo in securing new employment and in applying for a fresh card at Perinthalmanna while working as attached workers. 8. I have carefully considered the submissions advanced and have gone through the records. 9. Two reasons have been stated by the DLO while rejecting the appeal. The first reason is that the 4th petitioner has not produced any records to substantiate that petitioners 2 and 3 are working in the WPC 3455 of 2024 8 establishment. The 4th petitioner has produced before this Court Exts.P12 to 16 records to substantiate that she is maintaining the wages register, service records, and muster roll. It is their contention that despite the production of the above records, it was stated in the order that no records were produced. I am inclined to accept the contention advanced by the petitioners. There is no reason as to why the petitioner should refrain from producing the records before the Authority. As the order was passed without considering the records, the same warrants interference on that count. 10. The next question is with regard to the deprivation of job avenues to the registered pool workers if registration is granted to the attached workers. As rightly submitted by the learned counsel, the ALO as well as the DLO, in their order has reiterated that the income which is being obtained by the pool workers will get depleted if registration is granted to the attached workers. In view of the law laid down in **Brijesh John** , it was not open to the authorities to hold so. I find that though a specific observation was made by this Court in Ext.P5 judgment, while passing the impugned orders, the same mistake has been committed by the authorities concerned. 11. The next contention is that the petitioners 2 and 3 were holding 26A cards elsewhere. I find that the contention of the petitioners WPC 3455 of 2024 9 is that the establishment in which the petitioners 2 and 3 had earlier worked had closed down. Rule 26A deals with the Registration of Headload Workers. The provision states that any headload worker may submit his application for registration in Form IX to the Registering Authority concerned, with as many additional copies as there are employers or contractors from whom he claims to work. On receipt of such application, the Registering Authority is required to issue notice in Form X to the employers or contractors from whom the headload worker claims work and in area where the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 is in operation, to the Chairman, Kerala Headload Workers Welfare Board Local Committee in such area with a copy of the application inviting objections, if any, on such application. After considering the objections, if any, received and after giving an opportunity of being heard, the Registering Authority is required to register the name of the headload worker in the Register of Headload Workers on being satisfied that the headload worker is eligible for registration and communicate the fact to the parties within two weeks of such registration. The Registering Authority shall also issue identity cards to the registered headload worker in form XI. In other words, if the headload worker gets himself assigned to an employer, he can seek registration under Rule 26A. Neither the Act nor the Rules prescribe that when an establishment closes down, the workman should sit idle or that WPC 3455 of 2024 10 he should seek cancellation of registration before he seeks registration under a new employer. 12. In view of the discussion above, I am of the considered opinion that the impugned order passed by the DLO cannot be sustained under law. Ext.P11 will stand quashed. There will be a direction to the District Labour Officer to reconsider the matter in light of the law laid down in **Vishal MP** (supra) and **Brijesh John** (supra) as clarified in **Nishad** (supra), while considering the request for registration. The 4th petitioner shall place the register of wages as well as the muster roll so that those records are also considered to ascertain as to whether the petitioners 1 to 3 are attached workers in the establishment. The DLO shall take up the matter and pass orders expeditiously, in any event, within a period of one month. This petition is disposed of. Sd/- ## **RAJA VIJAYARAGHAVAN V, JUDGE** IAP WPC 3455 of 2024 11 ## **`APPENDIX OF WP(C) 3455/2024`** ## **`PETITIONERS’ EXHIBITS:`** ``` Exhibit-P1TRUECOPYOFTHETRADELICENSEDATED 7.6.2023ISSUEDBYTHEPERINTHALMANNA MUNICIPALITYTOTHE4THPETITIONER,VALID UPTO31.3.2024. Exhibit-P2TRUECOPYOFTHEORDERNO.269/2022PASSED BYTHE2NDRESPONDENT,DATED20.12.2022. Exhibit-P3TRUECOPYOFTHEJUDGMENTINW.P.(C) NO.4019/2023ONTHEFILEOFTHISHONORABLE COURT,DATED22.2.2023. Exhibit-P4TRUECOPYOFTHEORDERNO.I.R(1)446/2023 PASSEDBYTHEDISTRICTLABOUROFFICER, KOZHIKODE,DATED21.3.2023. Exhibit-P5TRUECOPYOFTHEJUDGMENTINW.P.(C) NO.13719/2023ONTHEFILEOFTHISHONORABLE COURT,DATED8.9.2023 Exhibit-P6TRUECOPYOFTHEAPPLICATIONFOR REGISTRATIONOFHEADLOADWORKERSSUBMITTED BYTHE1STPETITIONER,DATED25.9.2023. Exhibit-P7TRUECOPYOFTHEAPPLICATIONFOR REGISTRATIONOFHEADLOADWORKERSSUBMITTED BYTHE2NDPETITIONER,DATED25.9.2023. Exhibit-P8TRUECOPYOFTHEAPPLICATIONFOR REGISTRATIONOFHEADLOADWORKERSSUBMITTED BYTHE3RDPETITIONER,DATED25.9.2023. Exhibit-P9TRUECOPYOFTHEORDERNO.266/2023PASSED BYTHE2NDRESPONDENT,DATED4.12.2023. Exhibit-P10TRUECOPYOFTHEAPPEALMEMORANDUM SUBMITTEDBYPETITIONERS1TO3BEFORETHE ``` WPC 3455 of 2024 12 ||**`1ST RESPONDENT, DATED 11.12.2023.`**||| |---|---|---|---| |**`Exhibit-P11`**|**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`ORDER`**<br>**`NO.C-18065/2023`**||| ||**`PASSED`**<br>**`BY`**<br>**`THE`**<br>**`1ST`**<br>**`RESPONDENT,`**|**`DATED`**|| ||**`29.12.2023.`**||| |**`Exhibit P12`**|**`TRUE COPY OF THE RELEVANT PAGES OF THE `**||**`WAGE`**| ||**`REGISTER`**<br>**`FOR`**<br>**`THE`**<br>**`PERIOD`**<br>**`COMMENCING`**||**`FROM`**| ||**`18.2.2023 TO 31.12.2023, DATED -NIL-.`**||| |**`Exhibit P13`**|**`TRUE COPY OF THE SERVICE RECORD OF `**|**`THE `**|**`1ST`**| ||**`PETITIONER, DATED -NIL-`**||| |**`Exhibit P14`**|**`TRUE COPY OF THE SERVICE RECORD OF `**|**`THE `**|**`2ND`**| ||**`PETITIONER, DATED -NIL-`**||| |**`Exhibit P15`**|**`TRUE COPY OF THE SERVICE RECORD OF `**|**`THE `**|**`3RD`**| ||**`PETITIONER, DATED -NIL-`**||| |**`Exhibit P16`**|**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`RELEVANT`**<br>**`PAGES`**|**`OF`**|**`THE`**| ||**`MUSTER ROLL, DATED -NIL-`**|||