Swapna Ashraff v District Labour Officer, Thrissur & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **FRIDAY, THE 11[TH] DAY OF FEBRUARY 2022 / 22ND MAGHA, 1943** ## **WP(C) NO. 17995 OF 2021** ## **PETITIONER/S:** MS.SWAPNA ASHRAFF AGED 53 YEARS W/O ASHRAF, KULANGARA THOPPUPARAMBIL, KOORKANCHERRY VILLAGE, SAW MILL ROAD, THRISSUR DISTRICT, PIN-680 007, PROPRIETRIX, KWALITY FOOT WEAR AGENCIES, WARD IX, 35/1025-4, KMA TOWER, CALDYAN SCHOOL ROAD, THRISSUR, 680 001. BY ADVS. V.J.JAMES K.A.HAZAN M.M.FATHIMA JALEENA K.P.WILSON ARUN PAUL (KAPRASSERY) ## **RESPONDENT/S:** 1 DISTRICT LABOUR OFFICER, THRISSUR, CIVIL STATION, AYYANTHOLE P.O.THRISSUR DISTRICT, PIN-680 003. 2 THE ASSISTANT LABOUR OFFICER THRISSUR 3RD CIRCLE, CHEMBUKAVU P.O.THIRSSUR DISTRICT, PIN-680 020. 3 THE CHAIRMAN, KERALA HEAD LOAD WORKERS WELFARE BOARD, JAI HIND BUILDINGS, THRISSUR, THRISSUR P.O.THRISUR DISTRICT, PIN680 001. 4 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR & SKILLS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN695 001. **WP(C) NO. 17995 OF 2021** **2** 5 SRI.SADANANDAN C.C, HEAD LOAD WORKER, KWALITY FOOTWEAR AGENCIES, KMA TOWER, CALDIAN SCHOOL ROAD, THRISSUR, PIN-680 001. 6 SRI. JAYARAJAN T.V, HEAD LOAD WORKER, KWALITY FOOTWEAR AGENCIES, KMA TOWER, CALDIAN SCHOOL ROAD, THRISSUR, PIN-680 001. 7 SRI. SOBISH, N.S, HEAD LOAD WORKER, KWALITY FOOTWEAR AGENCIES, KMA TOWER, CALDIAN SCHOOL ROAD, THRISSUR, PIN-680 001. 8 SRI. K.O. SHAJU, HEAD LOAD WORKER, KWALITY FOOTWEAR AGENCIES, KMA TOWER, CALDIAN SCHOOL ROAD, THRISSUR, PIN-680 001. BY ADVS. SRI.S.KRISHNA MOORTHY, SC, KHWWB ALEX ABRAHAM ## **OTHER PRESENT:** JUSTINE JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 17995 OF 2021** **3** ## **JUDGMENT** Petitioner is the proprietor of Quality Foot Wear Agencies, a Wholesale and Retail Shop engaged in the sales and distribution of the Foot wear in Ward No.IX, 35/1025-4, KMA Tower, Caldyan School Road, Thrissur. The construction was completed in 2019 and the power connection was also taken on 28.5.2020. All the other required permissions like the property tax and license was also obtained. The petitioner had submitted an application for registration of the workers for carrying on the works namely Sri.Sadanandan C.C, Jayarajan T.V, Sobish N.S and K.O Shaju who is respondent Nos. 5 to 8. Even the permission under the Shop and Establishment Act has been also taken. Respondent No.2/Assistant Labour Officer conducted the hearing and rejected the matter vide order dated 24.2.2021, Ext.P9. Aggrieved against the aforementioned order, an appeal was preferred, Ex.P10, which has resulted into rejection by Ext.P11 dated 5.7.2021. 2. Learned counsel appearing for the petitioner submits that the pith and substance / tenor of the judgment under challenge is that **WP(C) NO. 17995 OF 2021** **4** on the date of inspection by the concerned officer the employees sought to be registered were not working is against the dictum laid down by this Court in Rajeev v. District Labour Officer (2010 (4) KLT 783). Order is thus arbitrary, irrational and unjustified. Four applicants are fully entitled for the registration as the employer has no objection. 3. Respondents opposed the aforementioned prayer and reiterated the findings given by the authorities submitted that the petitioner failed to produce on record any register regarding the employment of the workers for whom the registration was sought for. 4. I have heard the learned counsel for the parties and appraised the paper book. Rule 26A of the Head load workers Act compulsorily requires any private agency where there is an applicability of the aforementioned provisions of the Act to seek a registration, by submitting an application to the concerned District Labour Officer and under Rule 6 of the Kerala Head Load Workers Welfare Board (Regulation of Employment and Welfare, 1983) scheme, the board is enjoyed upon an obligation to issue identity card. But before that the registration is a sine qua non. The reasoning assigned by both the authorities of non availability of the **WP(C) NO. 17995 OF 2021** **5** employees were sought to be registered under the aforementioned Act is totally contrary to the findings rendered by the judgment cited (supra). Para 11 of the same reads thus: 11. _The result of the above discussion is that for a prospective head load worker to get registration under Rule 26A of the Kerala Head load Workers' Rules, all what is required is physical ability to do head load work. As for registration as an attached worker an added condition is readiness of an employer to employ him as a head load worker. The requirement that a person should have first worked as a headload worker under an W.P.(C) No.26774 of 2008 employer in order to get registration under Rule 26A directly contradicts clause 6 of the Kerala Head Load Workers (Regulation of Employment and Welfare) Scheme, 1983. Therefore respondents 1 and 2 could not have validly rejected the applications submitted by respondents 3 and 4 merely on the ground that the petitioner had not produced records to show that they had worked under the petitioner earlier. Therefore the respondents 3 and 4 are entitled to registration under Rule 26A for doing headload work in the petitioner's establishment, in so far as they are able bodied persons, who can work as headload workers and the petitioner is ready to employ them as headload workers. Consequently, Ext.P7 and P9 are unsustainable and hence quashed. The 2[nd] respondent is directed to grant registration to respondents 3 and 4 under Rule 26A of the Kerala Headload Workers Rules, considering Ext.P4 applications submitted by them for that purpose. This shall be done within one month from the date of receipt of a copy of this judgment._ Accordingly, orders under challenge are not sustainable; hereby quashed. The writ petition is allowed. The application submitted by the petitioner is deemed to be allowed. Respondent No.2 is directed to issue the registration number to the employees of the petitioner and thereafter the petitioner is at liberty to apply for issuance of the Identity card under Rule 6 of the scheme, if not submitted, the **6** ## **WP(C) NO. 17995 OF 2021** petitioner is directed to apply. Let this exercise be undertaken within a period of 15 days from the date of receipt of a copy of this judgment. Sd/- sab **AMIT RAWAL, JUDGE** **WP(C) NO. 17995 OF 2021** **7** ## **APPENDIX OF WP(C) 17995/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LICENSE BEARING NUMBER 140170222000345 DATED 12.1.2021 ISSUED FROM THE THRISSUR CORPORATION. Exhibit P2 TRUE COPY OF THE RECEIPT NO 154223 DATED 18.2.2021 OBTAINED FOR REMITTING FEE FOR RENEWAL OF LICENCE Exhibit P3 TRUE COPY OF THE APPLICATION ALONG WITH MEDICAL CERTIFICATE FILED BY THE 5TH RESPONDENT BEFORE THE 2ND RESPONDENT FOR REGISTRATION Exhibit P4 TRUE COPY OF THE APPLICATION ALONG WITH MEDICAL CERTIFICATE FILED BY THE 6TH RESPONDENT BEFORE THE 2ND RESPONDENT FOR REGISTRATION Exhibit P5 TRUE COPY OF THE APPLICATION ALONG WITH MEDICAL CERTIFICATE FILED BY THE 7TH RESPONDENT BEFORE THE 2ND RESPONDENT FOR REGISTRATION Exhibit P6 TRUE COPY OF THE APPLICATION ALONG WITH MEDICAL CERTIFICATE FILED BY THE 8TH RESPONDENT BEFORE THE 2ND RESPONDENT FOR REGISTRATION RESPECTIVELY Exhibit P7 TRUE COPY OF THE STATEMENT DATED 21.12.2020 WITHOUT ENCLOSURES SUBMITTED BEFORE THE 2ND RESPONDENT BY THE PETITIONER **WP(C) NO. 17995 OF 2021** **8** Exhibit P8 TRUE COPY OF THE DECISION IN RAJEEVE VS DISTRICT LABOUR OFFICER (2010(4) KLT 783) Exhibit P9 TRUE COPY OF THE ORDER NO HLA1101/2020 TO 1104/2020 DATED 24.2.2021 Exhibit P10 TRUE COPY OF THE APPEAL MEMORANDUM DATED 24.2.2021 FILED BEFORE THE 1ST RESPONDENT Exhibit P11 TRUE COPY OF ORDER DATED 5.7.2021 PASSED BY THE DISTRICT LABOUR OFFICER, DISMISSING THE APPEAL RESPONDENT EXHIBITS Exhibit R5(a) TRUE COPY OF THE APPOINTMENT LETTER NO.2 DATED 01/10/2020 ISSUED TO THE 7TH RESPONDENT. Exhibit R5(b) TRUE COPY OF THE APPOINTMENT LETTER N.3 DATED 01/10/2020 ISSUED TO THE 6TH RESPONDENT. Exhibit R R5(c) TRUE COPY OF THE APPOINTMENT LETTER NO.4 DATED 01/10/202 ISSUED TO THE 8TH RESPONDENT. Exhibit R R5(d) TRUE COPY OF THE APPOINTMENT LETTER NO.5 DATED 01/10/2020 ISSUED TO THE 5TH RESPONDENT. Exhibit R R5(e) TRUE COPY OF THE STATEMENT DATED 21/12/2020 (WITHOUT ENCLOSURES) FILED BY THE WORKERS BEFORE THE 2ND RESPONDENT, ASST. LABOUR OFFICER. Exhibit R R5(f) TRUE COPY OF THE APPEAL PETITION DATED 12/03/2021 (WITHOUT ENCLOSURES) FILED BY THE WORKERS BEFORE THE 1ST RESPONDENT, DISTRICT LABOUR OFFICER. **WP(C) NO. 17995 OF 2021** **9** PETITIONER EXHIBITS Exhibit P12 TRUE COPY OF APPOINTMENT LETTER ISSUED TO SRI.SADANANDAN.C.C Exhibit P13 TRUE COPY OF APPOINTMENT LETTER ISSUED TO SRI.JAYARAJAN.T.V Exhibit P14 TRUE COPY OF APPOINTMENT LETTER ISSUED TO SRI.SOBISH.N.S Exhibit P15 TRUE COPY OF APPOINTMENT LETTER ISSUED TO.SRI.K.O.SHAJU Exhibit P16 TRUE COPY OF THE APPLICATION IN FORMB1, ALONG WITH TRUE TRANSLATED COPY, FILED FOR REGISTRATION BEFORE THE 2ND RESPONDENT. Exhibit P17 TRUE COPY OF THE CERTIFICATE OF REGISTRATION NO.SH080880130130 DATED 9.11.2020, ALONG WITH ITS TRUE TRANSLATED COPY, ISSUED BY THE 2ND RESPONDENT TO THE WRIT PETITIONER