Sky Water Wonder World v. District Labour Officer, Thrissur; Kerala Head Load Workers Welfare Board, Thrissur Committee v. District Labour Officer, Thrissur (W.P.(C). Nos. 25348/2010 and 28432/2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** ## **WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932** ## **WP(C).No. 25348 of 2010(P)** **-------------------------** ## **PETITIONER :** ## **------------------** **SKY WATER WONDER WORLD, OPP: ADAM BAZAR, RICE BAZAR ROAD, THRISSUR - 680 001. REP. BY ITS MANAGING PARTNER, RAJEEV JOSEPH.** **BY ADVS. SRI.DEEPU THANKAN SMT.G.RANJITA** ## **RESPONDENT(S):** **-------------------------** **1. THE DISTRICT LABOUR OFFICER, THRISSUR P.O., THRISSUR DISTRICT – 680 001.** ***2. SUB INSPECTOR OF POLICE, TOWN EAST POLICE STATION, THRISSUR – 680 001 THRISSUR EAST P.O. (CORRECTED)** ***R2 IS CORRECTED AS** **SAJO K. JOHNSON, POOL LEADER CITU, 3B, POOL, RICE BAZAR ROAD, TRICHUR.** ## **CORRECTED AS PER ORDER DATED 13/9/2010 IN I.A.NO. 11569/10** **3. T.V.JOSE, POOL LEADER CITU AMI POOL, RICE BAZAR ROAD, THRISSUR DISTRICT - 680 001. THRISSUR EAST P.O.** **4. TIMI MATHEW, POOL LEADER BMS AMI POOL, RICE BAZAR ROAD, THRISSUR DISTRICT THRISSUR EAST P.O., 680 001.** **...2/-** **WP(C).No. 25348 of 2010(P) -2-** **5. M.A.ARUN, HEAD LOAD WORKER, POOL, RICE BAZAR ROAD, THRISSUR DISTRICT – 680 001 THRISSUR EAST P.O.** **R1 BY GOVT. PLEADER SRI. P.M. MANOJ R5 BY ADV. SRI.V.P.PRASAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2010, ALONG WITH WPC NO. 28432/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...3/-** ## **WP(C).No. 25348 of 2010(P) -3-** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : COPY OF APPLICATION FOR LICENCES UNDER THE KERALA MUNICIPALITY ACT DATED 5/6/2010.** - **EXT.P2 : COPY OF LICENCE GRANTED BY THE THRISSUR CORPORATION DATED 20/7/2010.** - **EXT.P3 : COPY OF THE APPLICATION DATED 17/6/2010, FOR REGISTRATION UNDER THE KERALA SHOPS AND COMMERCIAL ESTABLISHMENTS ACT.** - **EXT.P4 : COPY OF THE REGISTRATION CERTIFICATE DATED 23/6/2010.** - **EXT.P5 : COPY OF IDENTITY CARD ISSUED TO THE WORKERS OF THE PETITIONER BY THE LABOUR OFFICER, THRISSUR DATED 19/7/2010.** - **EXT.P6 : COPY OF INTERIM ORDER PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT ON 28/7/2010 IN W.P.NO.23573/2010.** - **EXT.P7 : COPY OF INTERIM ORDER PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT IN W.P.(C) NO. 23573/2010 ON 5/8/2010.** - **EXT.P8 : COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT ON 31/7/2010 RECEIVED BY THE PETITIONER ON 5/8/2010.** - **EXT.P9 : COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 10/8/2010.** ## **RESPONDENT'S EXHIBITS:** **EXT.R5(a) : COPY OF LETTER OF ASSISTANT LABOUR OFFICER DT. 5/8/2010.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **Mn** ## C.T.RAVIKUMAR, J ---------------------------W.P.(C).NOS.25348 AND 28432 OF 2010 -----------------------------------------------Dated this the 27[th] day of October, 2010 ## JUDGMENT The facts and issues involved in these writ petitions are intertwined in such a manner that they call for a joint consideration. In fact, a decision in W.P.(C).No.28432 of 2010 would decide the fate of the other writ petition. Therefore, it is treated as the leading case. As a matter of fact, in this writ petition filed by the Kerala Head Load Workers Board, Thrissur committee the very question of its maintainability calls for decision. The question whether Board/committee fall can be said to be 'a person aggrieved' for the purpose of Rule 26C of the Kerala Head Load Workers Rules, 1981 (for short 'the only Rules') is also to be decided to answer the aforesaid question. This writ petition is filed mainly with the prayer for issuance of a writ of mandamus commanding the 1[st] respondent, the District Labour Officer, Thrissur to dispose of Ext.P2 appeal strictly following the procedure prescribed in Rule 26C of the Rules. The further prayer is for issuance of declaration that Ext.P1(a) and Ext.P1(b) issued by the Assistant Labour Officer are not valid as the same was issued without following the procedures prescribed in Rule 26A of the Rules. The other writ petition has been filed challenging Ext.P9 and also with W.P.(C).NOS.25348 AND 28432 OF 2010 2 the following prayers:- i) issue a writ of mandamus or any other appropriate writ or order, declaring that the 1[st] respondent in the appeal filed under Rule 26C of the Kerala Head Load Workers Act are entitled to get a copy of the appeal memorandum from the office of the appellate authority and sufficient time also to be given to file an objection in the appeal memorandum. ii) issue a writ of mandamus or any other appropriate writ or order, direction directing denying that the respondents 2 to 5 have no right to file an appeal under Rule 26C of the Kerala Head Load Workers Rules. Ext.P9 in W.P.(C) No.25348/2010 is the copy of the order passed by the 1[st] respondent, the District Labour Officer, Thrissur in the appeal filed by respondents 2 to 5 therein challenging the grant of identity cards to respondent Nos.3 and 4 in this writ petition. They were issued on 19.07.2010 by the Assistant Labour Officer under Rule 26A of the Rules. The said identity cards are produced in this writ petition as Exts.P1(a) and P1(b) and in fact, they are sought to be declared as not valid. Ext.P2 is the appeal preferred by the petitioner Board for cancellation of Exts.P1(a) and P1(b) identity cards. The grievance of the petitioner in W.P.(C) No.25348/10 who is actually the W.P.(C).NOS.25348 AND 28432 OF 2010 3 employer of respondent Nos.3 and 4 is that Ext.P9 was passed without affording him an opportunity being heard that too, after serving Ext.P8 notice in the appeal. In this writ petition the grievance of the Board is that Ext.P2 appeal preferred by the Board under Rule 26C(2) was not taken up for consideration even after the statutorily prescribed outer limit viz., 30 days from the date of the appeal. In fact, it is still pending before the 1[st] respondent and at the same time, the appeal preferred by respondents 2 to 5 in W.P.(C).No.25343/2010 against the grant of Exts.P1(a) and P1(b) identity cards was considered and the said identity cards were cancelled as per Ext.P9. Now, I may deal with issue as to whether the W.P.(C). No.28432/2010 filed by the Kerala Head Load Workers Welfare Board, Thrissur Committee is maintainable. Admittedly, the petitioner committee is constituted under section 18 of the Kerala Head Load Workers Act 1978 (for short 'the Act' only). The respondents raised the said question by contending that the Board/Committee cannot be said to be ' a person aggrieved' for the purpose of Rule 26 C of the Rules. In the context of the contention it is relevant to refer to Section 14(1) of the Act and it reads thus: “The Government may, by notification in the Gazette, appoint a committee for such area W.P.(C).NOS.25348 AND 28432 OF 2010 4 and with such name as may be specified in the notification for the purpose of exercising the powers and performing the functions of the committee under this Act and the scheme, in relation to that area” Section 14(2) as reads thus: “The Board shall be a body corporate with the name specified, having perpetual succession and a common seal, with power to acquire, hold and dispose of property and to contract and may be that name sue and be sued.” Relying on the said provisions, the learned counsel appearing for the petitioner submitted that this writ petition is maintainable, because the committee by that name can sue and be sued. However, the question is whether the petitioner can be said to be an 'aggrieved party' for the purpose of Rule 26C of the Rules. Rule 26C(1) and (2) read thus: “(1) Any person aggrieved by an order of the Registering Authority under (Sub rules(3) or (4) of Rule 26A may file an appeal within 60 days from the date of receipt of such order before an officer not below the rank of District Labour Officer notified by Government as Appellate Authority in this behalf: ## W.P.(C).NOS.25348 AND 28432 OF 2010 5 Provided that the Appellate Authority may admit an appeal filed after the expiry of them said period if he is satisfied that the appellant has sufficient cause for not filing the appeal within the said period. Provided further that no such appeal shall be admitted after a period of six months from the date of the order of the Registering Authority appealed against. (2) On receipt of an appeal, the appellate authority may make such enquiries as he deems fit and after giving the employer if any and headload worker an opportunity of being heard and decide the appeal within a period of 30 days from the date of receipt of the appeal. The decision of the appellate authority shall be final”. The petitioner is aggrieved by the decision of the Asst. Labour Officer passed by invoking the power Rule 26A of the Head Load Workers Rules 1981. Rule 26A(1) provides that an application for registration in Form 9 shall be submitted to the registering authority. Rule 26A(2) provides the procedures for passing orders thereon. In the decision in _**Jnana Prakasan v. Natarajan reported in 2002(1)**_ _**KLT 39**_ this Court held that the word 'aggrieved' includes existing workmen and further that existing workmen are entitled to maintain an appeal. There cannot be any doubt, going by the very provision, W.P.(C).NOS.25348 AND 28432 OF 2010 6 that the word 'aggrieved' employed in Rule 26C(1) of the Rules take in the 'employer' as well. As already noticed under Section 2(i) of the Act the committee, constituted under Section 18 would also be 'an employer'. The Kerala Head load Workers (Regulation of Employment and Welfare) Scheme, 1983 also assume relevance in the context of the case. The various duties and functions of the Committee constituted under Section 18 of the Act, its convener and chairman have been dealt with under the Scheme. Clause 19, 20 and 21 of the scheme also assume relevance in the context of the case and they read thus:- 19. “The committee shall determine the member of headload workers needed for their area and for this purpose increase or decrease the member in their register.” 20. “The Chairman shall make necessary arrangements to pool the registered workers into as many groups as are needed and locate these groups at locations decided by him.” 21. ”An Employer requiring the service of head load workers from time to time intimate the convener the member of workers needed by him and the convener shall allot such member of Registered workers for that employer.” A cumulative effect of all of the above extracted provisions, W.P.(C).NOS.25348 AND 28432 OF 2010 7 would necessarily indicate that the Board/Committee can take up an appeal against an order or action in registering headload workers in case registration has been granted in violation of the provisions of the Rules. Holding otherwise would definitely disable the Board/committee constituted under Section 14/18 of the Act to perform the functions cast upon them under the Act, the Rules and the scheme. Therefore, I have no hesitation to hold that this writ petition filed by the District Committee of the Kerala Head Load Workers Welfare Board as maintainable. I am fortified in view of by judgment of a Division Bench of this Court in Writ Appeal No.407 of 2008. The directions issued therein would reveal that a Board/Committee would fall under the term 'aggrieved party'. There is no reason at all to hold that the Board/committee has no locus standi to prefer an appeal under Rule 26A of the Rules, in the aforesaid circumstance. In short Ext.P2 appeal preferred by the petitioner is also maintainable and therefore, it has to be disposed of on merits. However, aggrieved by the order of the Assistant Labour Officer an appeal was also preferred by respondents 2 to 5 in the former writ petition. The said appeal was allowed and consequently, the identity cards issued under Rule 26A to respondents 3 and 4 in the former writ petition were cancelled. The former writ petition is filed by their employer challenging the said W.P.(C).NOS.25348 AND 28432 OF 2010 8 order viz., Ext.P9 therein. The reason assigned in Ext.P9 in the former writ petition for cancelling the registration of respondent 3 and 4 in the latter writ petition, issued under Rule 26A, itself would go to show that prior to the grant of registration the petitioner in the latter writ petition should have been consulted prior to their registration. That again would support the view that Ext.P2 appeal preferred by the petitioner in the latter writ petition is maintainable and liable to be disposed of, on merits. However, Ext.P9 would unfold an apparent illegality. The Registration granted to respondents 3 and 4 in W.P.(C) No.28432/2010 was cancelled without following the prescribed procedure and, above all, without affording an adequate opportunity to the concerned registered workers. In fact, after issuing notice to their employer viz., the petitioner in the former writ petition he was also not heard prior to the passing of Ext.P9 in W.P.(C) No.25348/2010. Thus, the mandate to issue notice to the concerned employer was also reduced in to a force. Evidently, the concerned registered workers whose registration was cancelled and identity cards were directed be surrendered as per Ext.P9, were also not provided with a proper opportunity before cancelling their registration. Thus, in the totality of circumstances Ext.P9 in the former writ petition is also liable to be set aside so as to facilitate a joint consideration of the appeals referred by W.P.(C).NOS.25348 AND 28432 OF 2010 9 respondents 2 to 5 in the former writ petition and the petitioner-Board in the latter writ petition, under Rule 26 C of the Rules. Since this is essential to avert miscarriage of justice, I am of the view that the technical stand that Ext.P9 is not challenged by the concerned workers shall not stand in the way. Accordingly, Ext.P9 order is set aside. I am of the view that the 1[st] respondent need not issue fresh notices to the concerned parties that is the petitioners in these writ petitions and respondents 2 to 5 in the former writ petition and respondents 3 and 4 in the latter writ petition. The 1[st] respondent shall take up the matter for hearing after fixing a date for that purpose. To enable the first respondent to fix a date the parties shall appear before the 1[st] respondent on 15-11-2010. Since all the aggrieved parties are before the appellate authority, the appellate authority shall proceed with consideration of the appeals preferred by respondents 2 to 5 in W.P. (C).No.25348 of 2010 and Ext.P2 appeal preferred by the petitioner in W.P.(C)No.28432 of 2010 jointly, and this shall be done as expeditiously as possible, at any rate, within a period of 6 weeks from 15-11-2010. The petitioner in W.P.(C).No.25348 of 2010 is the employer of respondents 3 and 4 in W.P.(C).No.28432 of 2010. In the fitness of things it will be only appropriate for the petitioner in W.P.(C). No.25348/2010 to inform respondents 2 and 4 in W.P.(C).No.28432 of W.P.(C).NOS.25348 AND 28432 OF 2010 10 2010 with respect to the posting of the appeals before 1[st] respondent that is on 15-11-2010, to avoid further delay in the matter. These writ petitions are disposed of accordingly. C.T.RAVIKUMAR,JUDGE pm