Simi Santhosh v. District Labour Officer (Appellate Authority), Kasaragod; The Assistant Labour Officer, Kanhangad; The Kerala Headload Workers Welfare Board District Committee, Kasaragod; The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENTTHE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 24TH DAY OF MAY 2019 / 3RD JYAISHTA, 1941 ## WP(C).No. 1373 of 2019 ## PETITIONER/S: SIMI SANTHOSH AGED 37 YEARS W/O.SANTHOSH JOSEPH, PROPRIETOR, MALABAR CEMENT WORKS, RESIDING AT CHAKKAMKUNNEL HOUSE, MALAKKALLU P.O., RAJAPURAM (VIA), KASARAGOD DISTRICT. BY ADVS. M SASINDRAN SRI.V.VENUGOPAL ## RESPONDENT/S: |1|THE DISTRICT LABOUR OFFICER,| |---|---| ||(APPELLATE AUTHORITY), CIVIL STATION, KASARAGOD - 671 121.| |2|THE ASSISTANT LABOUR OFFICER| ||KANHANGAD (REGISTERING AUTHORITY, KERALA HEADLOAD| ||WORKERS ACT AND RULES) KANHANGAD - 671 315, KASARAGOD| ||DISTRICT.| |3|KERALA HEADLOAD WORKERS WELFARE BOARD DISTRICT| ||COMMITTEE| ||KASARAGOD - 671 121, REPRESENTED BY ITS SECRETARY.| |4|STATE OF KERALA| ||REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT| ||OF LABOUR, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.| ||BY ADVS.| ||GOVERNMENT PLEADER| ||SRI.THOMAS ABRAHAM, SC, KHWWB| ## OTHER PRESENT: GP SRI. MATHEWE GEORGE VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P.(C) No.1373/2019** **-2-** ## **J U D G M E N T** Heard Sri M. Sasindran, the petitioner's counsel, Sri Thomas Abraham, the learned Standing Counsel, and Sri Mathew George Vadakkel, the learned Government Pleader for the respondents. 2. The petitioner prays for a writ of certiorari and quash Exts.P5, P5(a) an P5(b) and also P7 as illegal. The issue arises under the Kerala Headload Workers Rules 1981 (for short 'the Rules'). 3. The petitioner who is into business of construction and cement works applied under Ext.P4 series applications before the second respondent for registering the petitioner under the Rules. The applications filed by the petitioner resulted in Ext.P5 rejection dated 22.11.2018 Order Nos.1090/2018, 1091/2018 and 1092/2018. The petitioner aggrieved by the rejection filed appeal before the first respondent. The appeal was also rejected by the order in Ext.P7. The petitioner challenges Ext.P5 series and Ext.P7 as illegal and the reasons assigned by first and second respondents are **W.P.(C) No.1373/2019** **-3-** unsustainable, the conclusions recorded by respondent nos. 1 and 2 are completely contrary to the ratio of this Court in the decision reported in _Gangadharan C.P. v. Abdul Nasir_[1] . The petitioner relies on the following paragraphs in the said reported decision. “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 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 1 2016 (5) KHC 238 **W.P.(C) No.1373/2019** **-4-** 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 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, **W.P.(C) No.1373/2019** **-5-** 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:_ _(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._ **W.P.(C) No.1373/2019** **-6-** _(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 egistration. 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._ _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_ **W.P.(C) No.1373/2019** **-7-** _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 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 **W.P.(C) No.1373/2019** **-8-** 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 merely for the reason that somebody else, who has already got berth may have to adjust a bit more with the available **W.P.(C) No.1373/2019** **-9-** 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 concerned. We hold that the verdict passed by the learned **-10-** ## **W.P.(C) No.1373/2019** 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.” Therefore, for the above view taken in the reported decision it is prayed for setting aside the orders challenged in the writ petition and remit the case to second respondent for consideration and disposal in accordance with the conclusions of the reported decision excerpted above. The learned counsel for petitioner has also invited the attention of the Court to the findings recorded both by the first and second respondents. 4. The learned Government Pleader fairly states that the reasoning recorded by the first and the second respondents is not in consonance with the view taken by this Court in _Gangadharan C.P._ 's case. It is further stated that the orders impugned in the writ petition are unsustainable, could be set aside by this Court and the matter remitted to second respondent for consideration and disposal in accordance with the ratio laid down by this Court in _Gangadharan C.P._ 's case. **-11-** ## **W.P.(C) No.1373/2019** 5. The statement made on behalf of the counsel for the respondents is placed on record. I have perused _Gangadharan C.P._ 's case and I am satisfied that the ratio laid down in the decision referred to above is applicable in all fours to the facts and circumstances of the case. Exts.P5, P5(a), P5(b) and P7 are liable to be set aside and accordingly set aside. Ext.P4 is restored to the file of the second respondent for consideration and disposal in accordance with law by following the ratio laid down in the decision referred to above. The second respondent considers and passes orders as early as possible, preferably within four weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of accordingly. Sd/- S.V.BHATTI JUDGE jjj **-12-** ## **W.P.(C) No.1373/2019** ## APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE ASSISTANT LABOUR OFFICER, KANHANGAD UNDER THE KERALA SHOPS AND COMMERCIAL ESTABLISHMENT ACT. - EXHIBIT P2 A TRUE COPY OF THE D & O LICENSE ISSUED BY THE SECRETARY OF THE BALAL GRAMA PANCHAYATH. - EXHIBIT P3 A TRUE COPY OF THE CONSENT GRANTED BY THE ENVIRONMENTAL ENGINEER OF THE KERALA STATE POLLUTION CONTROL BOARD, KASARAGOD. - EXHIBIT P4 TRUE COPY OF THE APPLICATION SUBMITTED BY DAMODHARAN.P.N. HEAD LOAD WORKER FOR REGISTRATION AS HEADLOAD WORKERS. - EXHIBIT P4 A TRUE COPY OF THE APPLICATION SUBMITTED BY SURESH KUMAR HEAD LOAD WORKER FOR REGISTRATION AS HEADLOAD WORKERS. - EXHIBIT P4 B TRUE COPY OF THE APPLICATION SUBMITTED BY MANOJ KUMAR HEAD LOAD WORKER FOR REGISTRATION AS HEADLOAD WORKERS. - EXHIBIT P5 TRUE COPY OF THE ORDER NO.1090/2018 DATED 22/11/2018. - EXHIBIT P5 A TRUE COPY OF THE ORDER NO.1091/2018 DATED 22/11/2018. - EXHIBIT P5 B TRUE COPY OF THE ORDER NO.109/2018 DATED 22/11/2018. - EXHIBIT P6 A TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 26/12/2018 VIDE NO.G3 4860/2018.