Sunil Kumar v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:-** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 20TH DAY OF FEBRUARY 2018 / 1ST PHALGUNA, 1939** **W.P(C).No.838 of 2018** ## **PETITIONER(S):-** ## **----------------** **SUNIL KUMAR, S/O.DAMODARAN NAIR, ALUVEETTIL HOUSE, PATTITHARA POST, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN-679534.** **BY ADVS.SRI.K.RAVI (PARIYARATH) SRI.A.V.RAVI** ## **RESPONDENT(S):-** ## **---------------** **1. THE STATE OF KERALA,** - **REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT,** - **HOME DEPARTMENT, THIRUVANANTHAPURAM-695001.** **2. THE DISTRICT POLICE CHIEF,** - **OFFICE OF THE DISTRICT POLICE CHIEF,** - **PALAKKAD, DPO ROAD, PALAKKAD, PIN-679001.** **3. THE INSPECTOR OF POLICE,** - **OFFICE OF THE INSPECTOR OF POLICE,** - **PATTAMBI, PALAKKAD DISTRICT, PIN-679001.** **4. THE SUB INSPECTOR OF POLICE,** - **THRITHALA POLICE STATION, THRITHALA, PALAKKAD DISTRICT,PIN-679001.** **5. THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD,** - **PALAKKAD DISTRICT COMMITTEE, REPRESENTED BY ITS CHAIRMAN, PALAKKAD, PIN-679001.** **6. THE SECRETARY,** - **CITU UNION, MEZHATHUR, THRITHALA, PALAKKAD DISTRICT, PIN-679001.** **7. THE SECRETARY,** **INTUC UNION, MEZHATHUR, THRITHALA, PALAKKAD DISTRICT,PIN-679001.** **W.P(C).No.838 of 2018 (D)** ## **- 2 -** **8. ASHRAF.V.P, AGED 43 YEARS, S/O ALAVI,(INTUC WORKER), RESIDING AT VATTPARAMBIL HOUSE, MEZHATHUR(P.O),** **THRITHALA, PALAKKAD DISTRICT, PIN-679001.** **9. SUKUMARAN.P.K, AGED 58 YEARS, S/O.CHATHAPPAN (INTUC,WORKER), RESIDING AT POTHINKATTIL HOUSE, MEZHATHUR(P.O), THRITHALA, PALAKKAD DISTRICT, PIN-679001.** **10. SURESH.A, AGED 40 YEARS, S/O.VELAYUDHAN( CITU WORKER), RESIDING AT AMAMTHILATH HOUSE, MEZHATHUR(P.O), THRITHALA,** **PALAKKAD DISTRICT, PIN-679001.** **11. SUNIL KUMAR.V.T, AGED 42 YEARS, S/O.THAMI (CITU WORKER), RESIDING AT VALAYATHAZHATH HOUSE, MEZHATHUR(P.O),** **THRITHALA, PALAKKAD DISTRICT, PIN-679001.** **R1 TO R4 BY SERNIOR GOVERNMENT PLEADER SRI.P.P.THAJUDEEN.** - **R5 BY STANDING COUNSEL SRI.THOMAS ABRAHAM.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P(C).No.838 of 2018 (D)** **APPENDIX** ## **PETITIONER(S)' EXHIBITS:-** ## **-------------------------** **EXHIBIT P1 TRUE COPY OF THE DOCUMENT NO.3644/2016 OF S.R.O., KOOTTANAD, DATED 30.07.16.** **EXHIBIT P2 TRUE COPY OF THE DOCUMENT NO.2840/2016 OF THE S.R.O., KOOTTANAD, DATED 30.07.16** **EXHIBIT P3 TRUE COPY OF THE COMPLAINT LODGED BY THE PETITIONER BEFORE THE RESPONDENTS 2 TO 4, DATED 01.01.18.** **RESPONDENT(S)' EXHIBITS:------------------------NIL.** **Vku/[ true copy ]** ## K. Vinod Chandran & Ashok Menon, JJ. ------------------------------------------------------W.P(C) No.838 of 2018-D ------------------------------------------------------Dated, this the 20[th] day of February, 2018 ## **JUDGMENT** ## Vinod Chandran, J: The petitioner has a farm, where he has rubber and teak plantations as also rearing of livestock. The petitioner in the writ petition allege that respondents 6 to 11 have been claiming loading and unloading work and causing obstruction to the peaceful conduct of the activities in the farm. The petitioner, to carry out the incidental work of loading and unloading, arising in the farm, by his own farm labourers, relies on a Larger Bench decision of this Court in _**Theresa Jose v. Sub Inspector of Police**_ ## **[2015 (3) KHC 487 (Larger Bench)].** 2. The primary contention of the petitioner is that there is no regular loading and unloading work carried on in the petitioner's property. The petitioner only carries on loading and unloading work incidental to the activities of the farm, for which there is no requirement of having regular headload workers. We see from the Larger Bench decision cited above that the aforesaid specific question was considered and answered in the affirmative. - 2 - W.P(C) No.838 of 2018 The Larger Bench considered the decisions of this Court in _**Obrin v. Sub Inspector of Police**_ **[2005 KHC 927]** and _**Venkatraman v. Sub Inspector of Police**_ **[2005 KHC 1212]** to find that if the work of loading and unloading in an establishment is only incidental to the other activities, there is no requirement for having a regular registered headload worker to carry on such work. We extract herein the finding of the Division Bench in _**Obrin,**_ wherein paragraph 21 of the decision of the Full Bench reported in _**Raghavan v. Superintendent of Police**_ **[1998 (2) KLT 732]** was first extracted and followed:- “"5. Both sides have not disputed before us the above finding entered by the 3rd respondent. It is true that the petitioner has not challenged Ext. P3 order of the 3rd respondent rejecting the application for registration preferred by the workers of the petitioner. But the stand of the 2nd respondent Union as upheld in Ext. P3 order is that loading and unloading work in the Unit of the petitioner is only incidental to the main work of manufacture and therefore the permanent workers of the petitioner are only doing loading and unloading work occasionally. If so, it is paragraph 21 of the Full Bench decision reported in 1998 (2) KLT 732 ( _supra_ ) that applies. The said paragraph reads as follows: "21. Yet another point raised before us was the case of workers employed in the establishments, who are doing the work of loading and unloading along with other duties. Learned counsel for the petitioners could contend that in such circumstances, the workers cannot be treated as headload workers coming under - 3 - W.P(C) No.838 of 2018 the definition of that term under the Act. We do, not think that this is an issue where an answer in general can be given. It will depend on the facts of each case. If the worker is doing loading and unloading work regularly in the establishment, he cannot be taken out of the purview of the Act only for the reason that he is discharging some other duties also. On the other hand, if he is principally employed to carry on the work other than loading and unloading and if occasionally he does the work of loading and unloading, it may not be possible to treat him as a headload worker coming within the definition. But, as mentioned earlier, it will depend on the facts of each case." ## (Emphasis supplied) The correctness of the above observation of the Full Bench was not canvassed before us by either side. Thus, in a case as the present, where loading and unloading work is only incidental to the main work of the industrial unit, the worker attached to the employer doing such loading and unloading work is not a headload worker and, therefore, the 1978 Act or the Rules or the Scheme do not apply to such worker. If so, the employer is not bound to engage a headload worker, much less, a registered head load worker of the 2nd respondent Union, for doing the loading and unloading work in the establishment where loading and unloading work is incidental to the main work. In other words, the 2nd respondent cannot put forward any right to engage its workers for the loading and unloading operations in the petitioner's unit." ## _**Venkatraman**_ also said so in paragraphs 13 and 16:- "13. We feel that in the above context, the prime enquiry has to be conducted with reference to the definition of headload worker as found in S.2(m) of Headload Workers - 4 - W.P(C) No.838 of 2018 Act, 1998. A person has to be employed directly or through contractor engaged in or for an establishment, for loading or unloading work, for him to be identified as a headload worker. Therefore, if principally and predominantly a person is not engaged for headload work, he is not a "headload worker' as coming under the Act. Other provision of the enactment lends support to such conclusion. Take for example the restriction regarding hours of work. An adult worker is not to be employed for more than eight hours per day. A person who is above the age of 60 is not to be so employed. Stipulations regarding fixation of pay, intervals etc. also show that what is contemplated is a legislation for a category of a distinct description. A person who may casually attend to loading / unloading work in an establishment is therefore not entitled to be identified as a headload worker. 16. When we take notice of the preamble of the Kerala Headload Workers Act, 1978, vis., "whereas it is expedient to regulate the employment of headload workers in the State of Kerala and to make provision for their welfare, for the settlement of disputes in respect of their employment or non employment and for matters connected therewith;" and the Kerala Loading and Unloading (Regulation of Wages and Restriction of Unlawful Practices) Act, 2002, it could be seen that the exception carved out by the Full Bench, and the reasoning given by decisions are acceptable. The unorganised sector of employees was being extended a protection, by providing for regularity of work. It did not intend to snatch away a portion of work from regular workmen, and in fact dealt hardly with any issues in respect of such group. In all appearances, it does not intend - 5 - W.P(C) No.838 of 2018 to cover engagement of casual nature, and it is not as if every activity of loading / unloading in the scheme notified areas should be carried out by workers included in the scheme. We are however compelled to observe that precision in the prescription is not a quality claimable by this special Statute. It is a bagful of provisions, without bearing in mind the workability of the bundled ideas." The finding of the Larger Bench in _**Theresa Jose**_ is available in paragraph 25, reads as under:- “25. The expression 'establishment employing workers which has been used in item No. 5 of the Schedule has also been used in the Scheme, 1983. R.7 of 1983 Scheme obliges the employer who engages or employs headload workers in or for an establishment of trade or business to register his name with the Committee. There are various statutory obligations of employer who engages or employs headload workers including registration under the Scheme. The converse of R.7 shall be that those employers who do not engage or employ headload workers in an establishment need not apply for registration. Thus the employing of headload workers is an important factor for identifying the establishment in item No. 5 and for other purpose in the statutory scheme”. 3. The learned Government Pleader submits, on instructions, that there is no obstruction caused by the party respondents herein, who are registered Trade Unions of headload W.P(C) No.838 of 2018 - 6 - workers. The petitioner is said to have complained against a nearby quarry, which was closed down. The workers of the quarry are said to be creating problems to the petitioner's farm. The police also submits that as of now there is no obstruction caused. 4. In any event, whether it be on the claim of loading and unloading work or on the basis of the animosity arising out of the complaint raised against a quarry, there can be no obstruction caused to the activities of the petitioner so long as it is carried on within the four corners of law. Hence, we direct the police to afford adequate protection if a complaint of any obstruction caused is made, after making an enquiry into the matter. The writ petition is allowed. No costs. Sd/K.Vinod Chandran Judge Sd/Ashok Menon Judge vku/- [ true copy ]