Shoukathali M. v. District Labour Officer, Malappuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.M.BADAR** ## **TUESDAY, THE 24[TH] DAY OF AUGUST 2021 / 2ND BHADRA, 1943** ## **WP(C) NO. 16669 OF 2020** ## **PETITIONERS:** 1 SHOUKATHALI M., AGED 42 YEARS, S/O.MUHAMMED, MATTATH HOUSE, CHERUMUKKU P.O., TIRURANGADI, MALAPPURAM DISTRICT, PIN-676 306. 2 MOHAMMED HAKKIM.P.K., S/O.MOIDEEN BAVA.P.K., PANDAMKAVIL, CHIRAMANGALAM, PARAPPANANGADI, MALAPPURAM DISTRICT, PIN-676 303. 3 MOHAMMED IQBAL.C., S/O.MUSTHAFA.C., CHAPPANGATTIL HOUSE, KAKKAD P.O., TIRURANGADI, MALAPPURAM DISTRICT, PIN-676 306. 4 HASSAN ALI, S/O.ENIKUTTY, AMMAMVEETTIL, AKKARAMANNIL HOUSE, KALATHINGALPARA, MOONNIYOOR SOUTH P.O., MALAPPURAM DISTRICT, PIN-676 311. 5 MUHAMMED, S/O.ALAVI, PATHOOR HOUSE, KODINCHI, NANNAMBRA, KOZHIKODE DISTRICT, PIN-676 309. BY ADVS. K.P.SUDHEER SRI.J.RAMKUMAR ## **RESPONDENTS:** 1 DISTRICT LABOUR OFFICER MALAPPURAM-676 505. 2 ASSISTANT LABOUR OFFICER, TIRURANGADI, MALAPPURAM DISTRICT, PIN-676 306. 3 KERALA HEADLOAD WORKERS WELFARE BOARD, MALAPPURAM DISTRICT COMMITTEE, MALAPPURAM-676 505, REPRESENTED BY ITS CHAIRMAN. R1 AND 2 BY SMT.SABEENA.P.ISMAIL, GOVERNMENT PLEADER R3 BY ADVS. SRI.THOMAS ABRAHAM,STANDING COUNSEL V.P.PRASAD ## **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** ## **24.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO. 16669 OF 2020 2 ## **JUDGMENT** ## **Dated this the 24[th] day of August 2021** Heard both sides. 2. The first petitioner is the Managing Partner of the firm named, The Metro Tile Mall and Ceramic Studio, Chemmad. Petitioner Nos.2 to 5 are his workers who are desirous of getting registration as headload workers under Rule 26A of the Kerala Headload Workers Rules, 1981. Therefore, they had preferred an application for registration vide Exhibits P2 to P5. Ultimately those applications came to be rejected by the Registering Authority and the Assistant Labour Officer vide order dated 05-02-2020 at Exhibit P8 with the following reason; _“It is found during the investigation that Metro Tile mall & Ceramic Studio is situated in a scheme covered area under Tanur Sub Office and that it is not a new establishment and that since its commencement the workers under CA-I, CA-3 and Cb pools have been doing the loading and unloading work. As it is found that these unattached workers from the pool will be affected adversely_ WP(C) NO. 16669 OF 2020 3 _if the applicants are given attached card, the application is hereby rejected and removed from the files._ 3. Dissatisfied with the order rejecting their application for registration as headload workers, the first petitioner and petitioner Nos.2 to 5 preferred a statutory appeal and the said appeal came to be rejected by the Appellate Authority/District Labour Officer vide impugned order dated 30-06-2020 at Exhibit P10. The appeal came to be rejected with the following observations and reasons; _“Metro Tile Mall and Ceramic Studio, Chemmad is working in a scheme covered area. For the past 3 years, the headload workers from the CA-1, CA-3 and CB pools under the Welfare Board have been doing headload work in the establishment. The establishment is registered under Welfare Board Tanur Sub Office as CH/42 on 1.1.2018. 30 employees under the Board are currently engaged in the loading unloading works of this establishment. It is found that if new registration for attached workers is granted now, these workers under the board will loose their work and it will cause considerable loss of income. It was also submitted by the board Superintendent that any shortcoming_ 4 WP(C) NO. 16669 OF 2020 _and problems on the part of workers can be addressed.”_ 4. The learned counsel for petitioners further submits that the subject matter of the instant petition is covered by judgment of this court in the matter of **Gangadharan C.P. v. Abdul Nasir reported in 2016(5) KHC 238** . He further argued that the learned Single Judge of this Court relying on the judgment in the matter of **Gangadharan C.P. (supra)** has allowed the **W.P.(C) No.1373/2019, Simi Santhosh v. The District Labour Officer and Ors on 24-05-2019** . 5. As against this, the learned Government Pleader appearing for respondent Nos.1 and 2 so also the learned Standing Counsel appearing for the 3[rd] respondent opposed the petition by contending that Metro Tile Mall and Ceramic Studio is situated in the scheme covered area and several headload workers are already working in that area under various pools. Therefore grant of registration to WP(C) NO. 16669 OF 2020 5 petitioner Nos.2 to 5 would affect the livelihood of those pool workers adversely and therefore the original authority as well as the appellate authority has rightly rejected the application for registration of petitioner Nos.2 to 5. 6. I have considered the submissions so advanced and also perused the materials placed before me. 7. Following are the observations of the learned Division Bench of this Court in the matter ## of **Gangadharan C.P. (supra)** . _“9. Going by the scheme of the statute and also by virtue of the binding precedents, it is always open for the Employer to make appropriate arrangements by engaging workers of his own to do the loading and unloading operations as well, thus getting it done by the attached workers, but it requires registration of such attached workers in terms of Rule 26A of the Rules. It is quite open for anybody to have his own freedom to do the work, trade or business which is a fundamental right under Article 19 (1)(g) of the Constitution of India. If such person/Employer seeks to engage sufficient number of workers to meet the requirements of his establishment on a permanent basis, it cannot be objected to from any corner, as it is the vested right of the Employer to engage sufficient_ WP(C) NO. 16669 OF 2020 6 _number of employees of his choice. But, by virtue of the provisions for regulating loading and unloading operations in an area, the State Government has passed an enactment and has formulated relevant rules in exercise of the rule making power. Since the area in question has been notified as a Scheme-covered area, such engagement of loading/unloading workers by the Employer has necessarily to be in tune with the regulations and it is accordingly, that registration of such workers is contemplated under Rule 26A of the Rules. It was in conformity with the said rules, that applications were made by the permanent workers/attached workers of the first writ petitioner vide Exts.P4, P5 and P6 before the registering authority, which however came to be rejected by the Asst. Labour Officer for the reason that it would adversely affect the rights of the existing registered workers in the area and further that the first writ petitioner/Employer had not maintained proper records, in terms of the statute. We find that the law declared by the different single Benches of this Court as per the rulings reported in 2010(4) KLT 783 (Rajeev's case) 2015 (1)KLT 750 (Majeed' case) 2015(5)KHC 275... ((Alfred Thomas v. State of Kerala and others) and 2015(1)KLT 314 (Muhammed Shafeek's case) are correctly decided in relation to the rights and liberties of the parties concerned, to the extent the issue involved in the present case is concerned. The sum and substance is that, it is very much obligatory for the registering authority to give registration to the attached workers, in terms of Rule 26A of the Rules, so as to enable the Employer and the attached workers to carry out the requirements of the establishment to the desired_ WP(C) NO. 16669 OF 2020 7 _extent, which cannot be watered down or thwarted in any manner._ _10. Coming to applicability of verdict passed by a Division Bench of this Court reported in 2002(1)KLT 39 (cited supra), as sought to be relied on by the appellants, the contention is that,registration can be denied, if it adversely affects the rights of the existing workers in the area and that there is a vested right to such registered 'unattached workers' to object granting of registration. It was a case where the writ petitioners were headload workers engaged in loading and unloading in the timber sale depot of the Forest Department at Walayar, who had obtained registration under Rule 26A of the Rules. On issuance of the identity cards to the writ petitioners, the party respondents/ headload workers in the locality engaged in doing loading and unloading works at Walayar Forest Coupe filed an appeal before the appellate authority under Rule 26C of the Rules, objecting the registration granted to the writ petitioners and claiming exclusive rights to do the loading and unloading work in the timber depot as well. After considering the grievance, the appellate authority allowed the appeal and cancelled the registration and the identity cards issued to the writ petitioners, which was challenged by filing the writ petition before this Court._ _….._ _….._ _14. Rule 26A of the Rules dealing with the provision for registration reads as follows:_ _“26A: Registration of Headload Workers:_ WP(C) NO. 16669 OF 2020 8 _(1) 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._ _(2) On receipt of such application the Registering Authority shall 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 copy of the application inviting objections, if any, on such application._ _(3) After considering the objections, if any, received and after giving an opportunity of being heard, the Registering Authority shall 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 card to the registered headload worker in Form XI. If the name is not registered, the Registering Authority shall communicate the fact to the applicant with reasons therefor (3A) Where the identity card of registration granted to a headload worker under sub-section (3) is defaced or accidentally lost or irrecoverably destroyed, he shall apply for a duplicate identity card along with two copies of recent photograph and a find of Rs.25/- (Rupees twenty five only) to the Registering Authority concerned. The Registering Authority may after making necessary enquiries and satisfying himself of the genuineness , issue a duplicate identity card._ WP(C) NO. 16669 OF 2020 9 _4. The registration of the person as headload worker may be cancelled by the Deputy Labour Officer or the District Labour Office concerned or where there is no post of Deputy Labour Officer in that District Labour Office, by the Asst. Labour Officer Grade I after satisfying himself on a report from Registering Authority that the Registration has been obtained by fraud or mistake. Provided that not less than one months' previous notice in writing specifying the ground on which the registration is proposed to be cancelled shall be given by the authority empowered to cancel the registration the headload worker, before the registration is cancelled. ”_ _15. From the above, it is quite obvious that, when an application for registration is obtained from a worker intending to get himself registered as a loading/unloading worker, notice in Form X is to be issued by the registering authority to the Employers or Contractors, from whom the headload worker claims work, with copy of the application, inviting objections, if any. It is after considering the said objection submitted under sub-rule (2) of Rule 26A that an opportunity of hearing has to be given as envisaged under sub-rule (3) of Rule 26A and shall pass an order on satisfying the eligibility, thereby giving registration and communicating the same to the parties concerned; also issuing identity card to the registered headload worker in Form. XI. If the name is not registered, then also, the registering authority is to communicate the fact to the applicant with the reasons therefore. The above Rules being the only rules for_ WP(C) NO. 16669 OF 2020 10 _governing the field of registration, notice is intended under sub-rule (2) of Rule 26A inviting objections only from the Employers or Contractors from whom the headload worker claims work and from nobody else. In other words, the Rule does not envisage issuance of any notice before registration to the existing registered 'unattached workers' in the area and no right is conferred upon them to submit objections in these days._ _17. Yet another aspect to be noted is that the status of the persons, who are the existing registered unattached workers in the area, who get aggrieved if any order is passed by the registering authority granting registration to more number of workers in the area and thus enabling them to prefer an appeal in terms of Rule 26C of the Rules, was made with reference to the right to live, which was declared as inclusive over right to livelihood as made clear by the Apex Court in Olga Telli's case and DTC case (cited supra). Applying the very same logic and reasoning, this Court is of the view that a similar right is there for a person, who becomes eligible, to get registered and to eke out his livelihood in the area. On a given date, a person may not be eligible but on attaining the eligibility, particularly on attaining majority and on feeling the need to maintain his family [which may be consisting of different persons/ dependents/ patients/ aged parents /widows/children and the like], at least by doing some loading or unloading operations, it definitely amounts to his right to live, which naturally includes the right to livelihood as well. This constitutional right to the person concerned cannot be denied to him_ WP(C) NO. 16669 OF 2020 11 _merely for the reason that somebody else, who has already got berth may have to adjust a bit more with the available infrastructure. Nobody can contend that those who became fortuitous to have obtained registration earlier could alone continue as such, denying similar rights to the others . Under such circumstances, it is always for the statutory authorities to regulate the extent of work available among the eligible hands by appropriate means/measures, either by way of rotation or otherwise and it is not by promoting only one lot and pushing down the other lot for ever. As such, eventhough the already existing registered unattached workers could be said as persons aggrieved on granting registration to more persons in the area and hence are eligible to prefer an appeal in terms of Rule 26C, it is for the appellate authority to consider all these aspects to an appropriate extent, giving effect to the scheme of the statute, without compromising the fundamental principle of equality before law and such other relevant provisions. In the instant case, since the registration sought for by the writ petitioners was in respect of 'attached workers' of the establishment and since the appellants are admittedly the registered unattached workers in the area, they could never have objected to such registration under any circumstance. No law or binding precedent is brought to the notice of this Court, to the contrary, so as to entertain the claim mooted by the appellants. The statutory authorities particularly the registering authority and the appellate authority failed miserably in this regard, which has been rightly intercepted by the learned single Judge by setting aside the orders_ WP(C) NO. 16669 OF 2020 12 _concerned. We hold that the verdict passed by the learned single Judge is perfectly within the four walls of law and is not assailable under any circumstance. Interference is declined and appeal is dismissed accordingly. No cost.”_ 8. In the matter of **Simi Santhosh (Supra), the** learned Single Judge of this Court had an occasion to consider the said judgment and relying on the said judgment, the writ petition came to be allowed. 9. In the light of law laid down by this Court in the matter of **Gangadharan C.P. (supra),** impugned orders at Exts.P8 and 10 cannot stand the scrutiny of law and therefore those are quashed and set aside. The application for registration as headload workers made for petitioner Nos.2 to 5 stands allowed and the 2[nd] respondent is directed to grant registration to those petitioners as headload workers by doing all consequential actions. This writ petition is disposed of as above. ## **Sd/A.M.BADAR JUDGE** ``` SSK/24/08 ``` WP(C) NO. 16669 OF 2020 13 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |EXHIBIT P1|TRUE COPY OF LICENCE DATED 21.05.2019| |---|---| ||ISSUED BY TIRURANGADI MUNCIPALITY.| |EXHIBIT P2|TRUE COPY OF APPLICATION NO.239442 DATED| ||11.12.2019 SUBMITTED BY THE 2ND PETITIONER| ||BEFORE THE 2ND RESPONDENT UNDER SECTION| ||26A.| |EXHIBIT P3|TRUE COPY OF APPLICATION NO.239512 DATED| ||11.12.2019 SUBMITTED BY THE 3RD PETITIONER| ||BEFORE THE 2ND RESPONDENT UNDER SECTION| ||26A.| |EXHIBIT P4|TRUE COPY OF APPLICATION NO.240970 DATED| ||18.12.2019 SUBMITTED BY THE 4TH PETITIONER| ||BEFORE THE 2ND RESPONDENT UNDER SECTION| ||26A.| |EXHIBIT P5|TRUE COPY OF APPLICATION NO.237498 DATED| ||11.12.2019 SUBMITTED BY THE 5TH PETITIONER| ||BEFORE THE 2ND RESPONDENT UNDER SECTION| ||26A.| |EXHIBIT P6|TRUE COPY OF JUDGMENT DATED 07.01.2020 IN| ||WRIT PETITION (CIVIL) NO.45/2020 PASSED BY| ||THIS HON'BLE COURT.| |EXHIBIT P7|TRUE COPY OF JUDGMENT DATED 24.05.2019 IN| ||WPC NO.1373/2019 PASSED BY THIS HON'BLE| ||COURT.| |EXHIBIT P8|TRUE COPY OF ORDER NO.740/2019 DATED| ||05.02.2020 ISSUED BY THE 2ND RESPONDENT.| ## **RESPONDENT'S EXHIBITS:NIL** SSK //TRUE COPY// PA TO JUDGE