High Court of KeralaSingle Judge2021-10-29Writ petition allowed; registration of the seco...

Swadeshi Trading Company Manas Arcade and Najeeb K v. Assistant Labour Officer 1st Circle, Kannur; District Labour Officer, Kannur; Head Load Workers Welfare Fund Board (Addl R3)

Case / Petition Number:WP(C) No. 18958 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Bechu Kurian Thomas
Judgment Date: 2021-10-29
Court Decision / Holding: The writ petition is allowed. Ext.P1 and Ext.P4 are set aside. The 2nd respondent (District Labour Officer) is directed to reconsider the 2nd petitioner’s application for registration as a headload worker in light of this judgment and to issue the identity card to the petitioner after granting registration to the 2nd petitioner as a headload worker attached to the establishment of the 1st petitioner within 30 days from receipt of a copy of this judgment.
Final Disposition: Writ petition allowed; registration of the second petitioner as headload worker attached to the first petitioner’s establishment; identity card to be issued within 30 days; Ext.P1 and Ext.P4 set aside.

Parties to the Case

Appellants / Petitioners

Swadeshi Trading Company Manas Arcade
Najeeb K

Respondents

Assistant Labour Officer, 1st Circle, Kannur
District Labour Officer, District Labour Office, Kannur
Addl R3 The Head Load Workers Welfare Fund Board, represented by its Chairman (Suo Motu Impleaded)

Legal Representation & Advocates

Counsels for Petitioners

• George Mecheril
• Sri Jojo Joseph
• Elizabeth George

Counsels for Respondents

• Sabeena P. Ismail
• Thomas Abraham

Case Synopsis & Summary

The writ petition concerns registration of a permanent worker as a headload worker under the Kerala Headload Workers Act, 1978 in a scheme-covered area. The 1st petitioner, Swadeshi Trading Company Manas Arcade, sought registration of its permanent worker (the 2nd petitioner) as a headload worker attached to the establishment. The Registering Authority rejected registration on two grounds: (i) an objection from the Chairman of the Kerala Headload Workers Welfare Board, and (ii) the finding that registration would prejudice existing workers in the area. The District Labour Officer on appeal also rejected registration for the same reasons, noting that there were 11 other nearby establishments and six registered headload workers in the pool. The petitioners contended that in a scheme-covered area, the right of an employer to engage a permanent worker is subject to registration only if the area is covered; if the worker is willing and physically capable and the employer consents, registration cannot be denied. The court relied on precedents, including Rajeev v. District Labour Officer, Manzoor v. District Labour Officer, V.Star Creations (P) Ltd. v. District Labour Officer, and Majeed v. District Labour Officer, to uphold the petition. It read down the Act to require willingness, adequate physique, and employer consent for registration, holding such restrictions reasonable. The court set aside the challenged orders, directing the District Labour Officer to reconsider the registration and issue the identity card within 30 days, thereby allowing the writ petition.

Provisions of Law Cited

Kerala Headload Workers Act, 1978Constitution of India, Article 19(1)(g)Constitution of India, Article 14Constitution of India, Article 19(6)

Legal Doctrines & Maxims

Read down (interpretation of statutes to align with constitutional rights)
Reasonable restrictions on fundamental rights (Art. 19(1)(g) read with Art. 19(6))
Discrimination as antithesis of equality (Art. 14)
Right to carry on any occupation subject to reasonable restrictions

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submitted that in a scheme-covered area, registration is the prerequisite to the legal employment of headload workers and that withholding registration merely because the area has existing registered workers or because the Welfare Board objects is impermissible. They argued that if the employer is willing to engage a permanent worker, and the worker is willing and physically capable, with the employer’s consent, registration cannot be denied. They contended that the restriction imposed by the Act should be read down to ensure that fundamental rights to practice an occupation are protected, citing Article 19(1)(g) and Article 14. The petitioners relied on established precedents which hold that registration cannot be denied where conditions of willingness and suitability exist, and urged a direction to grant registration and issue an identity card within a reasonable time frame.

Contentions of Respondents

The respondents contended that registration decisions were made to protect the interests of existing workers and to prevent disruption in a field with limited vacancies, especially given the economic downturn. They argued that the Welfare Board’s objections and the existence of other establishments within the area provide legitimate grounds to deny registration to new entrants. The counter-affidavit emphasized that granting registration might prejudice current workers and exacerbate unemployment in a recession. They urged maintaining the status quo pending a more thorough evaluation of local employment dynamics and welfare concerns.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Rajeev v. District Labour Officer	2010 (4) KLT 783	Positive	Cited as supportive authority for the proposition that registration cannot be denied when the worker is willing and physically fit, and the employer consents in a scheme-area.
Manzoor v. District Labour Officer	2021 (5) KLT 554	Positive	Cited to support the read-down approach allowing registration under similar circumstances.
V.Star Creations (P) Ltd. v. District Labour Officer	2012 (2) KLT 883	Positive	Cited as relevant authority aligning with the petitioners’ reasoning on registration in scheme areas.
Majeed v. District Labour Officer	2015 (1) KLT 750	Positive	Cited as supporting the view that registration should be allowed when conditions of willingness and suitability exist.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** ## **WP(C) NO. 18958 OF 2020** ## **PETITIONERS:** **1 SWADESHI TRADING COMPANY MANAS ARCADE, NEAR ST. ANTONY'S CHURCH, MOONAMPEEDIKA, KANNUR – 670 001, REPRESENTED BY MANAGING PARTNER. 2 NAJEEB K LOADING AND UNLOADING WORKER, SWADESHI TRADING COMPANY, MANAS ARCADE, NEAR ST.ANTONY'S CHURCH, MOONNAMPEEDIKARA, KANNUR - 670001. BY ADVS. GEORGE MECHERIL SRI.JOJO JOSEPH** ## **RESPONDENTS:** - **1 ASSISTANT LABOUR OFFICE 1ST CIRCLE, KANNUR, KANNUR – 670 002,** - **2 DISTRICT LABOUR OFFICER, DISTRICT LABOUR OFFICE, KANNUR- 670 002.** - **3 ADDL R3 THE HEAD LOAD WORKERS WELFARE FUND BOARD REPRESENTED BY ITS CHAIRMAN,KANNUR DISTRICT ADDL R3 IS** _**SUO MOTU**_ **IMPLEADED AS PER ORDER DATED 15/09/2020 IN WP(C) 18958/2020 BY ADV SMT.SABEENA P. ISMAIL, GOVERNMENT PLEADER ADV.THOMAS ABRAHAM, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2021, THE** **COURT ON 29.10.2021 DELIVERED THE FOLLOWING:** **WP(C) NO. 18958 OF 2020** **2** ## BECHU KURIAN THOMAS, J =========================== W.P.(C) No.18958 of 2020 --------------------------------------Dated this the 29[th] day of October, 2021 ## JUDGMENT The application of the 2[nd] petitioner for registration as a headload worker under the Kerala Headload Workers Act, 1978 [for short, 'the Act'] attached to the 1[st] petitioner was rejected by the Registering Authority for two reasons: - (i) that the Chairman of the Kerala Headload Workers Welfare Board had objected to the grant of registration, and - (ii) on enquiry the Registering Authority found that the grant of registration would prejudice the existing workers in the area. 2. The appeal filed by the 2[nd] petitioner before the - District Labour Officer, was also rejected reiterating - the same reasons. Appellate Authority further observed that within the area of 1[st] petitioner's - establishment; there are eleven other business **WP(C) NO. 18958 OF 2020** **3** establishments and the area had six registered headload workers available under the pool of workers. The Appellate Authority also observed that allegation of deficiency in the number of registered headload workers in the area, were baseless. 3. The employer as well as its permanent worker, who sought registration as a headload worker, have approached this Court invoking its jurisdiction under Article 226 of the Constitution of India. 4. It is pleaded that the right of an employer to engage a permanent worker of his choice to do the loading and unloading works in his establishment is subject to only one restriction that the worker must obtain a registration under the Act, if the area is covered under the scheme notified as per the Act. The business establishment of the 1[st] petitioner is admittedly situated in an area covered under the scheme, and the 2[nd] petitioner had expressed his **WP(C) NO. 18958 OF 2020** ## **4** willingness to do the work of loading and unloading in the said establishment. Since the 1[st] petitioner is willing to employ the said worker as a headload worker, there was no justifiable cause or legal reason available to reject the application. 5. A counter affidavit has been filed by the District Labour Officer stating that registration if granted will prejudice the existing workers of the locality, who are engaged by the Welfare Board. It is further stated in the counter affidavit that due to economic recession, there is a decline in the trade and business and that workers would be further prejudiced, if registration as sought for is granted. 6. I have heard Adv.Elizabeth George, the learned counsel for the petitioners, Adv.Sabeena P.Ismail, the learned Government Pleader and Adv.Thomas Abraham, the learned Standing Counsel for the 3[rd] respondent-Welfare Board. **WP(C) NO. 18958 OF 2020** ## **5** 7. In a scheme covered area, the work of loading and unloading can be done only by workers registered under the Act and its Rules. When the employer is willing to engage one of his permanent workers as a headload worker, and the said permanent worker is willing to accept such an employment, this Court has, time and again held that the registration to such a worker cannot be denied. The decisions in Rajeev v.District Labour Officer [2010 (4) KLT 783] as well as Manzoor v.District Labour Officer [2021 (5) KLT 554] are relevant for the aforesaid propositions. 8. When a worker has the necessary physique and the willingness to work as a headload worker; nothing prohibits or restrains him from getting registration as a headload worker attached to an establishment which is willing to engage him as a headload worker. **WP(C) NO. 18958 OF 2020** ## **6** 9. The reasoning adopted by the respondents in Ext.P1 and Ext.P4 that existing workers attached to the Headload Workers Welfare Board will be prejudiced if such new registration is granted, cannot be a legally reasoning at all. The decisions in V.Star Creations (P) Ltd. v. District Labour Officer [2012 (2) KLT 883] , and Majeed v.District Labour Officer [2015 - (1) KLT 750], are also relevant in this context. 10. This Court also bears in mind that, every person has a fundamental right under Article 19(1)(g) of the Constitution of India to carry on any occupation and the same can be subjected, only to reasonable restrictions, as provided for under Article 19(6). 11. The work of loading and unloading is not a work that requires any specialised experience or technical or educational qualifications. Any person who is willing to do loading and unloading must have the freedom to do the said work, unless, it is **WP(C) NO. 18958 OF 2020** **7** curtailed by a reasonable restriction. The restriction introduced through the Act for doing headload work, in a scheme covered area, is the requirement of registration as a headload worker. If the restriction of registration curtails the fundamental right of every individual to do headload work and the said restriction has to be constitutionally valid, without falling foul of Article 19(1)(g) and Article 14, then that restriction must be reasonable. 12. If the restriction is not reasonable, as mentioned above, it will create an unreasonable classification, resulting in discrimination between those left out of the group and those included in the group of headload workers. Discrimination being the antithesis of equality, the whole Act itself may not stand the test of constitutionality in such a scenario. To avoid such a situation, the provisions of the Act relating to registration have been read down by this Court to **WP(C) NO. 18958 OF 2020** ## **8** mean willingness to do headload work with the necessary physique and employer's consent as sufficient for granting registration. (See the decisions in Rajeev v.District Labour Officer [2010 (4) KLT 783] and Manzoor v.District Labour Officer [2021 (5) KLT 554]. 13. Viewed in the above perspective, the reasoning adopted by the respondents as mentioned earlier in Ext.P1 and Ext.P4 are perverse and those orders are liable to be set aside. 14. Accordingly, I set aside Ext.P1 and Ext.P4 and direct the 2[nd] respondent to re-consider the application of the 2[nd] petitioner for registration as a headload worker in the light of the observations in this judgment and issue the identity card to the petitioner after granting registration to the 2[nd] petitioner as a headload worker attached to the establishment of the 1[st] petitioner within a period of **WP(C) NO. 18958 OF 2020** **9** 30 days from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- BECHU KURIAN THOMAS, JUDGE AMV/29/10//2021 **WP(C) NO. 18958 OF 2020** **10** ## **APPENDIX OF WP(C) 18958/2020** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE ORDER OF THE ASSISTANT LABOUR OFFICER, VIDE ORDER NO.512/2013 DATED 06.12.2018. EXHIBIT P2 TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE DISTRICT LABOUR OFFICER DATED 14.01.2020 FILED BY THE 1ST PETITIONER. EXHIBIT P2(a) TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE DISTRICT LABOUR OFFICER DATED 14.01.2020 FILED BY THE 2ND PETITIONER. EXHIBIT P3 TRUE COPY OF THE HEARING NOTICE NO.G3/193/2020 DATED 05.06.2020 EXHIBIT P4 TRUE COPY OF THE ORDER NO. G4/193/2020 DATED 17.06.2020 OF THE DISTRICT LABOUR OFFICER, KANNUR DISTRICT 17.06.2020.** ## **RESPONDENTS EXHIBITS NIL** **TRUE COPY**