Sherief Nazimudeen v. State of Kerala and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 WP(C).No. 1663 of 2010(G) ------------------------------------------------ PETITIONER(S): ---------------------- SHERIEF NAZIMUDEEN, S/O.SHERIEF, T.C.41/2606 'SHA MANZIL', MANAKKAD P.O., THIRUVANANTHAPURAM-695019. BY ADV. SRI.D.PEETHAMBARAN SRI. B.S. PRASAD GANDHI RESPONDENT(S): -------------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUB INSPECTOR OF POLICE, VITHURA POLICE STATION, VITHURA, THIRUVANANTHAPURAM. 3. SRI.SUKUMARAN, SECRETARY, HEAD LOAD AND GENERAL WORKERS UNION (C.I.T.U.) THEVIYAD UNIT, THEVIYAD, VITHURA, THIRUVANANTHAPURAM. 4. SRI.RAJAN, CONVENOR, HEAD LOAD AND GENERAL WORKERS UNION (C.I.T.U.) THEVIYAD UNIT, THEVIYAD, VITHURA, THIRUVANANTHAPURAM. ADDL. R5. THE ASSISTANT LABOUR OFFICER, NEDUMANGAD. (ADDL.R5 IS SUO MOTU IMPLEADED AS PER JUDGMENT DATED 22.2.2010). R1, R2 & R5 BY GOVERNMENT PLEADER (SHRI T.K. VIPINDAS) ADV. SRI.M.SREEKUMAR FOR R3 & 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX IN W.P.(C).NO.1663 OF 2010 G PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF LEASE AGREEMENT DATED 11.11.2009 EXECUTED IN FAVOUR OF THE PETITIONER. EXT.P2 TRUE COPY OF CERTIFICATE OF REGISTRATION DATED 28.11.2009 ISSUED TO THE PETITIONER UNDER THE KERALA VALUE ADDED TAX RULES, 2005. - EXT.P3 TRUE COPY OF COMPLAINT DATED 10.1.2010 MADE BY THE PETITIONER BEFORE THE 2ND RESPONDENT, WITH COPY TO DISTRICT LABOUR OFFICER, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS: EXT.R4(A) TRUE COPY OF THE CHART SHOWING THE LOADING AND UNLOADING CHARGE IN VITHURA & THOLICODE PANCHAYATHS FROM 1.1.2010 TO 31.12.2011. - EXT.R4(B) TRUE COPY OF THE LETTER NO.01/2010 DATED 23.1.2010 FROM THE ASSISTANT LABOUR OFFICER, NEDUMANGADU. - EXT.R4(C) TRUE COPY OF THE IDENTITY CARD NO.01/07/7248/90 ISSUED TO THE 4TH RESPONDENT. EXT.R4(D) TRUE COPY OF THE LETTER NO.A6-2145/10 DATED 22.1.2010 FROM SECRETARY, VITHURA GRAMA PANCHAYATH. EXT.R4(E) TRUE COPY OF THE COMMUNICATION DATED 23.1.2010 ISSUED BY THE THIRUVANANTHAPURAM COMMITTEE OF KERALA HEADLOAD WORKERS WELFARE BOARD. ## _**// True Copy //**_ _**PS to Judge**_ ## **K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ.** ## **--------------------------------------------------** **W.P(C). NO. 1663 OF 2010 G --------------------------------------------------Dated this the 22[nd] February, 2010** ## **JUDGMENT** ## **K.M. Joseph, J.** Petitioner seeks police protection from the second respondent from obstruction on the part of respondents 3 and 4 and their men to unload the timber by the petitioner to his timber depot with the help of his own workers and machinery. 2. Briefly put, the case of the petitioner is as follows: Petitioner is a Gulf returnee. With his savings, he started business in timber. There is obstruction by respondents 3 and 4. Petitioner filed Ext.P3 complaint. A Counter Affidavit is filed by respondents 3 and 4. In the same, it is, inter alia, stated that Ext.R4(a) is the chart showing the loading and unloading charges in Vithura & Tholicode Panchayats for the period from 1.1.2010 to 31.12.2011. Petitioner is not having any registered headload workers. There are fifty headload workers in the Theviyode Unit. It is also stated that the petitioner did not _**WPC.1663/2010 G**_ _**2**_ obtain any licence from the Panchayat to conduct timber. A Reply Affidavit is filed. There is a dispute in relation to the rates. 3. We heard the learned counsel for the petitioner, learned counsel appearing for respondents and also the learned Government Pleader. Learned Government Pleader would submit that actually Ext.P3 petition seeking protection has not been received by the Police, nor has it been informed to them. There must be a demand and refusal, to maintain a writ of mandamus. 4. Learned counsel for respondents 3 and 4 would submit that the petitioner does not have any registered workers working in the area. Learned counsel for the petitioner would submit that actually huge amounts are being demanded by respondents 3 and 4, and the petitioner has no objection in employing registered workers working in the area, provided they are prepared to work at the rates fixed by the District Labour Officer (Learned counsel for respondents 3 and 4 would submit that _**WPC.1663/2010 G**_ _**3**_ respondents 3 and 4 are also prepared to work at the rates fixed by the Authority who is the Assistant Labour Officer, Nedumangad). 5. Admittedly, petitioner as of now, does not have any registered workers under the Headload Workers Act. According to the petitioner, the Scheme has not been made applicble. The case of respondents 3 and 4 is that the Kerala Headload Workers (Scattered Section) Welfare Scheme, 1999 is applicable in the area. This is sought to be probabilised by Ext.R4(e). Whether the Scheme is applicable or not, it is settled as per the decision of this Court in Raghavan v. Superintendent of Police (1998 (2) KLT 732 FB), that for a person to work as a headload worker in the State of Kerala, he must have obtained registration under the Act. Learned counsel for the petitioner would draw our attention to a Judgment of a Division Bench of this Court in W.P.(C).No.12192 of 2007 which reads as follows: _“This is a petition for police protection. According to the petitioner, he is starting a small industrial unit for furniture business. It is also_ _**WPC.1663/2010 G**_ _**4**_ _stated that there are willing workers, but, respondents 3 and 4 unions and supporters are obstructing the work. It is for the petitioner to decide whom should be employed as workers in the furniture shop. However, for loading and unloading work, the petitioner shall employ local registered workers at the rate fixed by the Labour_ _Officer. If the registered workers are not agreeable for unloading the materials at the rates fixed by the Labour Officer, police shall give adequate protection for unloading the materials by petitioner's own workers. With regard to further loading and unloading work by his own workers after starting of the factory, it is for him to register such workers as attached workers by filing applications before the Labour Officer as provided under the Headload Workers' Act.”_ He would submit that according to the said decision, he has a right to employee workers of his choice. We do not see any warrant for arriving at such a conclusion on the basis of the said Judgment. Going by the law declared by the Full Bench and also what is stated in the aforesaid Division Bench decision, _**WPC.1663/2010 G**_ _**5**_ petitioner cannot carry out the loading and unloading works except with the workers who are having registration under the Act. Even if the Unit is a new Unit, though some benefit was conferred under Section 26 of the Headload Workers' Act, by virtue of the Ordinance No.29/01, the said Ordinance has lapsed and Section 26 as it stands today, does not confer any such benefit for new entrepreneurs. Therefore, the resultant position is that the headload workers must be registered under the Headload Workers' Act for carrying out permanent work of loading and unloading. Since the petitioner and respondents 3 and 4 are agreeable to have the work done through the registered workers, provided the rates are such as are fixed by the competent authority, we dispose of the Writ Petition as follows: We record the submission of the learned counsel for the petitioner that the petitioner is prepared to carry out the loading and unloading work by the registered headload workers in the area. But, we direct that the petitioner need pay only the rates as are fixed by the competent Authority, namely the Assistant _**WPC.1663/2010 G 6**_ Labour Office, Nedumangad. The Assistant Labour Officer, Nedumangad is suo motu impleaded as additioanal fifth respondent and the learned Government Pleader appears for him. If the employees affiliated to respondents 3 and 4 demand remuneration which is higher than that is fixed by the competent authority, namely the ALO, the petitioner will be free to engage workers of his own choice and respondents 1 and 2 will afford adequate police protection to the petitioner in such an event, for carrying out the petitioner's work. **Sd/= K.M. JOSEPH, JUDGE** **Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk.** _**// True Copy // PS to Judge**_