SSCR 13 of 2021 (Sabarimala Special Commissioner Report), High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943 SSCR NO. 13 OF 2021** ## **PETITIONER/S:** **SUO MOTU** ## **RESPONDENT/S:** - **1 THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM - 695003** - **2 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM - 695001.** - **3 RANNI PERUNAD GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, RANNI PERUNAD (PO) - 689711** - **4 KERALA HEADLOAD WORKERS WELFARE BOARD DISTRICT COMMITTEE, PATHANAMTHITTA, AZAD BUILDING, NEAR OLD PRIVATE BUS STAND, PATHANAMTHITTA - 689645** - **5 DISTRICT LABOUR OFFICER, PATHANAMTHITTA EXCEL BUILDING, POST OFFICE ROAD, PATHANAMTHITTA - 689645** - **6 STATE POLICE CHIEF POLICE HEAD QUARTERS, VAZHUTHAKKAD, THIRUVANANTHAPURAM - 695010** - **7 THE DISTRICT POLICE CHIEF PATHANAMTHITTA - 689645** SSCR 13 of 2021 -2- **8 THE STATION HOUSE OFFICER PAMPA POLICE STATION, THRIVENI-PAMPA, PATHANAMTHITTA DISTRICT, KERALA – 689662** *** ADDL.R4 TO R8 ARE SUO MOTU IMPLEADED AS PER ORDER DATED 26.11.2021 IN S.S.C.R.13 OF 2021** **OTHER PRESENT:** **SRI S RAJMOHAN- SR GOVERNMENT PLEADER ;** **SRI G BIJU- STANDING COUNSEL TRAVANCORE DEVASWOM BOARD ,** **SRI SIJU KAMALASANAN- ADDL R4** **THIS SABARIMALA SPECIAL COMMISSIONER REPORT HAVING COME UP FOR ADMISSION ON 26.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SSCR 13 of 2021 -3- ## **O R D E R** ## Anil K. Narendran, J. The Special Commissioner, Sabarimala, has filed this Report reporting that a cartel of persons claiming to be the headload workers are causing obstructions to the loading and unloading of Pooja articles and also other articles and goods for providing facilities to the pilgrims in Pampa and Sannidhanam. 2. In the Report, the Special Commissioner has stated that all the activities carried on in Sabarimala, Pampa and Nilackal are to facilitate activities of the temples situated therein and to provide facilities to pilgrims. Pooja articles, raw materials for making prasadam, raw materials for Annadanam, etc., are being transported by the Travancore Devaswom Board, by tractors, from Pampa to Sannidhanam. Since the Board is expected to provide support and facilities to the pilgrims, there are hotels and shops by the Board. The goods and articles for these hotels and shops and also materials for construction activities are being transported by tractors from Pampa to Sannidhanam. A cartel of persons claiming to be the headload SSCR 13 of 2021 -4- workers are obstructing the loading and unloading activities, adversely affecting the transportation of goods and articles to Sannidhanam. 3. Heard the learned Amicus Curiae for the Special Commissioner, Sabarimala, the learned Standing Counsel for the 1[st] respondent-Travancore Devaswom Board, the learned Senior Government Pleader for respondents 2 and 5 to 8 and also Sri.Siju Kamalasanan, the learned Standing Counsel for additional 4[th] respondent-Kerala Headload Workers Welfare Board, District Committee, Pathanamthitta. 4. The issue that arises for consideration in this report is as to whether the headload workers under the Kerala Headload Workers Act, 1978 and the Scheme framed thereunder, have any right to claim loading and unloading activities at Sabarimala, Pampa and Nilackal. 5. Kerala Headload Workers Act, 1978 was enacted to regulate the employment of headload workers in the State of Kerala and to make provisions for their welfare, for the settlement of disputes in respect of their employment or non- SSCR 13 of 2021 -5- employment and for matters connected therewith. Clause (i) of Section 2 of the Act define ‘employer’ to mean in relation to a headload worker employed or engaged by or through a contractor, the principal employer; (ii) in relation to a headload worker who is not employed or engaged by any employer or contractor, the committee appointed under section 18; and (iii) in relation to any other headload worker, the person who has ultimate control over the affairs of the establishment in or for which the headload worker is employed and includes any other person to whom the affairs of such establishment are entrusted, whether such person is called an agent manager or by any other name prevailing in such establishment. Clause (j) of Section 2 define ‘establishment’ to mean an establishment specified in the Schedule and includes the precincts thereof. 6. Clause (m) of Section 2 of the Act define ‘headload worker’ to mean a person employed or engaged directly or through a contractor in or for an establishment, whether for wages or not, for loading or unloading or carrying on head or person or in a trolly any article or articles in or from or to a SSCR 13 of 2021 -6- vehicle or any place in such establishment or stacking articles, excluding delicate or sophisticated articles, in a vehicle or unloading by sliding using manual labour from a mechanically propelled vehicle or a person who does in connection with the working ports the works like filling of fertilisers in sacks, weighing and stitching of sacks, bundling breaking seals of containers, stacking and includes any person not employed by any employer or contractor but engaged in the loading or unloading or carrying on head or person or in a trolly any article or articles for wages, in or from or to a vehicle, or any place in such establishment or stacking articles excluding delicate or sophisticated articles in a vehicle or unloading by sliding using manual labour from a mechanically propelled vehicle but does not include a person engaged by an individual for domestic purposes. Clause (r) of Section 2 of the Act define ‘scheme’ to mean a scheme made under this Act. 7. Section 9A of the Act inserted by Act 13 of 2018 deals with engaging services of headload workers. As per sub-section (1) of Section 9A, subject to the provisions of this Act, an SSCR 13 of 2021 -7- employer shall engage a headload worker registered under the Act in connection with work of his establishment. As per the proviso to sub-section (1) of Section 9A, in the case of works which require assistance of skilled persons and which are to be done with due diligence or require the aid of machinery, such works may be done by engaging the persons having such skill or by the machinery, as the case may be. As per sub-section (2) of Section 9A, every headload worker shall be entitled to wages as prescribed by the Government under the provisions of this Act only if their services have been engaged by the employer or the owner of an establishment. 8. Section 13 of the Act deals with scheme. As per subsection (1) of Section 13 the Government may, by notification in the Gazette, make one or more scheme or schemes for any employment or group of employments in one or more area or areas specified in the notification, and by similar notification add to, amend or vary and such scheme or substitute another scheme for any such scheme. As per the proviso to sub-section (1) of Section 13 provides that no such notification shall come SSCR 13 of 2021 -8- into force unless a draft therefore is published in the Gazette and unless it is finalised after considering objections and suggestions received within one month of the publication of such draft in the Gazette. As per sub-section (2) of Section 13, subject to the provisions of this Act and the Rules made thereunder, a scheme made under sub-section (1) may provide for all or any of the matters enumerated in clauses (a) to (j) thereof. 9. In exercise of the powers conferred under Section 13 of the Act, the Government of Kerala by notification dated 30.11.1983 published Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983. As per Para.3 of the Scheme, it shall come into force in the area specified in the Schedule attached to the Scheme, in respect of all establishments from such date as may be fixed by the Government by notification in the gazette. Para.6 of the Scheme deals with procedure for regulation of employment of headload workers on scheme covered areas. Para.7 of the Scheme deals with registration of employers. As per sub-para (1) of Para.7, every employer in the area who engages or employs headload SSCR 13 of 2021 -9- workers in or for an establishment for trade or business either directly or through a contractor shall register their names with the Committee along with such details and in the manner as may be specified by the Board within 30 days from the date of commencement of the functional operation of the Scheme in an area or within such further time that may be allowed by the Committee not exceeding 45 days. 10. In **Thuravur Mahakshetra Bhaktajana Samithy v. Administrative Officer [1999 (3) KLT 900]** a Division Bench of this Court had an occasion to consider the obstruction caused by headload workers in connection with the annual festival at Thuravur Mahakshetram. In the said decision the Division Bench has stated in categorical terms that the Kerala Headload Workers Act only applies to the establishments mentioned in the Schedule and the temple does not find a place in the Schedule of the Act. Under such circumstances, obstructions, if any, by the headload workers shall be removed by the Police. Since large number of devotees and others assemble during the festival season, the Police authorities shall scrupulously follow the direction, preserve SSCR 13 of 2021 -10- and maintain law and order situation in the temple, its properties, workers and the members of the petitioner Samithy, who are engaged for loading and unloading work. In that case the dispute was in connection with loading and unloading activities for the construction and erection of panthal in connection with the temple festival. 11. The law laid down by the Division Bench in **Thuravur Mahakshetra Bhaktajana Samithy** was followed by another Division Bench in **C.S.Rajagopal and another v. Travancore Devaswom Board and others** [judgment dated 09.08.2016 in W.P(C)Nos.25772 and 25965 of 2016]. In W.P(C)No.25772 of 2016, which was one filed by two contractors engaged in carrying out the activities on contract basis in connection with the implementation of Sabarimala Master Plan under the control of High Power Committee and Travancore Devaswom Board, the grievance projected was the obstruction caused by various headload workers at Nilakkal, Pampa and Sabarimala, which are not scheme covered areas under the Kerala Headload Workers Act and the Scheme framed thereunder. In the connected writ SSCR 13 of 2021 -11- petition, i.e., W.P.(C)No.25965 of 2016, which was one filed by the Travancore Devaswom Board, the grievance was that unauthorised labour force is interfering with the activities as complained of by the petitioners in W.P.(C)No.25772 of 2016 and also in relation to transportation and other matters interconnected with the functioning of the temples and allied activities of Sabarimala hills, including Nilackal and Pampa. 12. In **C.S. Rajagopal** , after taking note of the law laid down by the Division Bench in **Thuravur Mahakshetra Bhaktajana Samithy [1999 (3) KLT 900]** , the Division Bench directed the Police to do the needful to accord necessary protection by using Police force as may be found necessary to effectuate appropriate action including management by Devaswom authorities and for the loading and unloading works being carried out at Nilackal, Pampa and Sabarimala, by the Travancore Devaswom Board through its contractors and the personnel engaged by them, subject to the clarification mentioned in the order in W.P.(C)No.25772 of 2016, as regards the settlement agreement mentioned therein. Paragraph 5 of that SSCR 13 of 2021 -12- ## judgment reads thus: “5. We concur with the aforesaid finding of the Division Bench and clarify that no labour force has any right to claim any priority or right to bargain in relation to activities in connection with temples and its activities and requisite movement of goods, including all matters connected with the requirement of temples, festival purposes, pilgrims and shops which are permitted to operate under the control and licence of Travancore Devaswom Board. Therefore, in furtherance of the direction issued above as regards W.P. (C).No.25772 of 2016, there would be a further order that respondents 1 to 4 and 6 in W.P.(C). No.25965 of 2016 shall do the needful to accord necessary protection, including by using police force as may be found necessary, to effectuate appropriate action including management by Devaswom authorities and for loading and unloading works being carried out at Nilackal, Pampa and Sabarimala by the Travancore Devaswom Board through its contractors and the personnel engaged by them, subject to the clarification mentioned in the order in W.P(C). No.25772 of 2016 as regards the settlement agreement mentioned therein.” 13. The direction contained in the judgment of this Court in **C.S.Rajagopal** is one made after concurring with the law laid down in **Thuravur Mahakshetra Bhaktajana Samithy** that the Kerala Headload Workers Act and the Scheme made thereunder SSCR 13 of 2021 -13- does not apply to Temple and its allied activities. 14. Viewed in the light of the law laid down in the decisions referred to supra conclusion is irresistible that the headload workers having registration under the relevant statute have absolutely no legal right to insist that they should be engaged for the loading and unloading activities in Sabarimala, Pampa and Nilackal. 15. The learned Standing Counsel for additional 4[th] respondent, on instructions, would submit that Nilackal, Pampa and Sabarimala are not Scheme covered areas and as such, there is no pool workers insofar as these areas are concerned. 16. Having considered the report of the Special Commissioner, Sabarimala and also the submissions made by the learned counsel on both sides, we deem it appropriate to direct additional respondents 6 to 8 to take necessary steps to ensure that the loading and unloading or the transportation of Pooja articles, raw materials for making prasadam and Annadanam, etc. and also other articles and goods for providing facilities to the pilgrims in Nilackal, Pampa and Sannidhanam, by the SSCR 13 of 2021 -14- Travancore Devaswom Board, its contractors and other parties engaged in the Temple for allied activities like providing facilities to the pilgrims are not obstructed in any manner by any loading and unloading workers their Unions or supporters. The 7[th] respondent-District Police Chief and the 8[th] respondent-Station House Officer shall take necessary steps to ensure that there is no law and order issues at Sabarimala, Pampa and Nilackal in connection with the loading and unloading or the transportation of such articles. In case of any threat or obstruction from any corner, the Police shall render necessary protection to all such activities. With the above directions, this S.S.C.R is closed. Sd/- **ANIL K. NARENDRAN, Judge** sd/- **P.G. AJITHKUMAR, Judge** bkn/-