Taurean Metals and Trading (represented by its Managing Partner Rajesh Babu) v. State Police Chief, Kerala State Police Headquarters, Kollam Rural Superintendent of Police, Chathannoor Station House Officer, Chathannoor Grama Panchayath, Kerala Headload Workers Welfare Board District Committee, Kollam, Sethu Madhavan (Convener, CITU, Chathannoor Unit), Sunil Kumar (Convener, INTUC, Chathannoor Unit), Thankaraj (Convener, BMS, Chathannoor Unit), and Addl. R9. R Dileep Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **FRIDAY, THE 04TH DAY OF DECEMBER 2020 / 13TH AGRAHAYANA, 1942** ## **W.P.(C)No.11381 OF 2020(W)** ## **PETITIONER/S:** - **1 TAUREAN METALS AND TRADING REPRESENTED BY ITS MANAGING PARTNER, RAJESH BABU, NEAR KSEB OFFICE, THIRUMUKKU, CHATHANOOR P.O., KOLLAM DISTRICT** **2 RAJESH BABU MANAGING PARTNER, M/S. TAUREAN METAL AND TRADING, NEAR KSEB OFFICE, THIRUMUKKU, CHATHANOOR P.O., KOLLAM DISTRICT,RESIDING AT RAJESH BHAVAN, KOIPADU, CHATHANNOOR P.O., KOLLAM DISTRICT** **3 AMBILY BABU PARTNER,M/S. TAUREAN METAL AND TRADING, NEAR KSEB OFFICE, THIRUMUKKU, CHATHANOOR P.O., KOLLAM DISTRICT, RESIDING AT ARUNODAYAM, THAZHAM, MEENAD, CHATHANNOOR P.O., KOLLAM DISTRICT** - **4 PRAKASH** **PARTNER, M/S. TAUREAN METAL AND TRADING, NEAR KSEB OFFICE, THIRUMUKKU, CHATHANOOR P.O., KOLLAM DISTRICT, RESIDING AT MALAVILA HOUSE, THAZHUTHALA, KANNANALLOOR P.O., KOLLAM DISTRICT** - **5 AMAL V.DEV** **PARTNER, M/S. TAUREAN METAL AND TRADING, NEAR KSEB OFFICE, THIRUMUKKU, CHATHANOOR P.O., KOLLAM DISTRICT, RESIDING AT MANGALATHU HOUSE, KILIKOLLOOR,KALLUMTHAZHAM P.O., KOLLAM DISTRICT** W.P.(C)No.11381 of 2020 2 - **6 SHABU** **PARTNER, M/S. TAUREAN METAL AND TRADING, NEAR KSEB OFFICE, THIRUMUKKU, CHATHANOOR P.O., KOLLAM DISTRICT,RESIDING AT SHABU BHAVAN, OTTAPLAMOODU, THAZHUTHALA, KOTTIYAM P.O., KOLLAM DISTRICT** - **7 BABURAJAN,** **PARTNER, M/S. TAUREAN METAL AND TRADING, NEAR KSEB OFFICE, THIRUMUKKU, CHATHANOOR P.O., KOLLAM DISTRICT,RESIDING AT RAJESH BHAVAN, THAZHAM NORTH, MEENAD, CHATHANNOOR P.O., KOLLAM DISTRICT** - **8 SANTHOSH KUMAR, PARTNER,M/S. TAUREAN METAL AND TRADING, NEAR KSEB OFFICE, THIRUMUKKU, CHATHANOOR P.O., KOLLAM DISTRICT, RESIDING AT DWANI, KUREEPPALLY, KUNNALLOOR P.O., KOLLAM DISTRICT** ## **BY ADV. SRI.SHAJIN S.HAMEED** ## **RESPONDENT/S:** - **1 THE STATE POLICE CHIEF, KERALA STATE POLICE HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN CODE-695 010** - **2 THE SUPERINTENDENT OF POLICE, KOLLAM (RURAL) ASHRAMAM ROAD, ASRAMAM, KOLLAM DISTRICT,PIN CODE-691 001** - **3 THE STATION HOUSE OFFICER, CHATHANNOOR POLICE STATION, CHATHANNOOR, KOLLAM DISTRICT, IN CODE-691 572** - **4 THE CHATHANNOOR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, CHATHANNOOR GRAMA PANCHAYATH OFFICE, CHATHANNOOR, KOLLAM DISTRICT,PIN CODE-691 572** W.P.(C)No.11381 of 2020 3 - **5 KERALA HEADLOAD WORKERS WELFARE BOARD DISTRICT COMMITTEE,** - **KOLLAM, REPRESENTED BY ITS SECRETARY, USHUS BUILDING, ANDAMUKKAM, KOLLAM DISTRICT, PIN CODE-691 001** - **6 SETHU MADHAVAN THE CONVENER, C.I.T.U, CHATHANNOOR UNIT, CHATHANNOOR, KOLLAM DISTRICT,PIN CODE-691 572** - **7 SUNIL KUMAR, THE CONVENER, I.N.T.U.C, CHATHANNOOR UNIT, CHATHANNOOR, KOLLAM DISTRICT,PIN CODE-691 572** - **8 THANKARAJ THE CONVENER, B.M.S., CHATHANNOOR UNIT, CHATHANNOOR, KOLLAM DISTRICT,PIN CODE-691 572** - **9 ADDL. R9. R DILEEP KUMAR, AGED 45 YEARS, S/O. RAMACHANDRAN, PRESIDENT, AITUC, CHATHANNOOR, MANDALAM COMMITTEE, OFFICEP. RAVEENDRAN SMARAKAM, CHATHANNOOR P.O., KOLLAM DISTRICT.** **(ADDITIONAL R9 IS IMPLEADED AS PER ORDER DATED 21/07/2020 IN IA 2/2020 IN WPC)** **R1-3 BY GOVERNMENT PLEADER** **R4 BY ADV. SRI.NEERAJ NARAYAN R5 BY SRI.SIJU K., SC, KHWWB R6 BY ADV. SMT.S.REKHA KUMARI R9 BY ADV. K.V.ANIL KUMAR** ## **OTHER PRESENT:** ## **SRI P.P.THAJUDHEEN - SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-11-2020, THE COURT ON 04-12-2020 DELIVERED THE FOLLOWING:** W.P.(C)No.11381 of 2020 4 ## **JUDGMENT** The 1[st] petitioner is a partnership firm, namely, M/s.Taurean Metals and Trading, represented by its Managing Partner. The 2[nd] petitioner is the Managing Partner of that firm. The 3[rd] petitioner, who is the wife of the 2[nd] petitioner, is a partner of that firm. As per Ext.P1 deed of reconstitution of partnership dated 01.03.2020, petitioners 4 to 8, namely, Sri. Prakash, Sri. Amal V. Dev, Sri. Shabu B., Sri. Baburajan S. and Sri. Santhosh Kumar were inducted as new partners of that firm, which was carrying on the business of trading metals and building materials under a deed of partnership dated 01.08.2019. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent Station House Officer, Chathannoor Police Station, to provide them adequate and effective police protection to run their establishment M/s.Taurean Metals and Trading, from the threat caused by respondents 6 to 8, namely, the Conveners of CITU, Chathannoor Unit; INTUC, Chathannoor Unit; and BMS, Chathannoor Unit and their men. The petitioners have also sought for a writ of mandamus commanding the 1[st] respondent W.P.(C)No.11381 of 2020 5 State Police Chief and the 2[nd] respondent Superintendent of Police, Kollam Rural, to direct the 3[rd] respondent Station House Officer to provide adequate and effective police protection to the petitioners to run their establishment M/s.Taurean Metals and Trading, from the threat caused by respondents 6 to 8 and their men. 2. On 10.06.2020, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 3. The learned Standing Counsel for Chathannoor Grama Panchayat took notice for the 4[th] respondent and the learned Standing Counsel for Kerala Headload Workers Welfare Board took notice for the 5[th] respondent District Committee. The petitioners were directed to take out notice to respondents 6 to 8 and produce proof of service before Registry, within a week. 3. On 18.06.2020, the petitioners filed I.A.No.1 of 2020, seeking an order to accept Ext.P7 trade licence dated 16.06.2020 issued by the 4[th] respondent Grama Panchayat, in the name of the 3[rd] petitioner, which is valid for the period from 16.06.2020 to 31.03.2021. On 23.06.2020, a statement has been filed on behalf W.P.(C)No.11381 of 2020 6 of the 5[th] respondent District Committee, opposing the reliefs sought for in this writ petition. On 02.07.2020, Sri Dileep Kumar, who is the President of AITUC, Chathannoor Mandalam Committee, filed I.A.No.2 of 2020, seeking an order to implead him as additional 9[th] respondent. I.A.No.2 of 2020 was allowed by the order dated 21.07.2020. 4. On 25.09.2020, when this writ petition came up for consideration, this Court noticed that the document marked as Ext.P1 is a deed of reconstitution of partnership dated 01.03.2020. In the 1[st] paragraph of the writ petition, the petitioners have stated that though the 1[st] petitioner firm was originally established by petitioners 2 and 3, since no business was commenced, they sustained huge financial loss. They searched for new partners and petitioners 4 to 8 were inducted as partners by Ext.P1 deed of reconstitution of partnership executed on 01.03.2020. In the affidavit accompanying I.A.No.2 of 2020 filed by the additional 9[th] respondent it is alleged that after the dismissal of W.P.(C)No.4453 of 2020 by the judgment dated 17.02.2020, the petitioners 2 and 3 reconstituted the partnership by inducting petitioners 4 to 8 as partners, who are only the W.P.(C)No.11381 of 2020 7 employees of the firm. By order dated 25.09.2020, Registry was directed to list this writ petition on 06.10.2020, along with the Judge's papers in W.P.(C)No.4453 of 2020, the earlier writ petition filed by petitioners 2 and 3, seeking police protection against respondents 6 to 8 herein. The 3[rd] respondent Station House Officer was directed to file statement before the next posting date. 5. On 28.09.2020, the additional 9[th] respondent has filed a counter affidavit, opposing the reliefs sought for in this writ petition. On 30.09.2020, the learned Senior Government Pleader has filed a statement on behalf of the 3[rd] respondent Station House Officer. On 30.10.2020, the petitioners have filed a reply affidavit to the statement filed by the 5[th] respondent. 6. On 09.11.2020, during the course of arguments, the learned counsel for the petitioners referred to the averments in paragraph 8 of W.P.(C)No.4453 of 2020, in which the details of the permanent employees engaged by petitioners 2 and 3 are mentioned, which include the 4th petitioner Prakash and the 6 th petitioner Shabu. This Court noticed that certain pages are missing in the Judges Papers of W.P.(C)No.4453 of 2020. After W.P.(C)No.11381 of 2020 8 paragraph 7 of the statement of facts in page 7, the next page, i.e., page 8 starts with ground B. By the order dated 09.11.2020, Registry was directed to get an explanation for the Filing Scrutiny Officer concerned and the learned Senior Government Pleader was directed to produce the copy of W.P.(C)No.4453 of 2020 served in the office of the learned Advocate General on 14.02.2020, along with a memo, after retaining a photocopy. Pursuant to that order, along with a memo filed by the learned Senior Government Pleader dated 11.11.2020 the copy of W.P. (C).No.4453 of 2020 served in the office of the learned Advocate General on 14.02.2020 was placed on record, in which as well, after paragraph 7 of the statement of facts in page 7, the next page starts with ground B. 7. Heard the learned counsel for the petitioners, the learned Senior Government Pleader appearing for respondents 1 to 3, the learned counsel for the 4[th] respondent Grama Panchayat, the learned Standing Counsel for the Kerala Headload Welfare Workers Board for the 5[th] respondent District Committee, the learned counsel for the 6[th] respondent and also the learned counsel for the additional 9[th] respondent. Despite service of W.P.(C)No.11381 of 2020 9 notice none appears for respondents 7 and 8. 8. Going by the averments in the writ petition, the 1[st] petitioner is a partnership firm engaged in the business of sale of hardware and building construction materials. Initially the 2[nd] and 3[rd] petitioners started the firm. They sustained huge financial loss due to non commencement of business. They searched for new partners and by Ext.P1 deed of reconstitution of partnership dated 01.03.2020 petitioners 4 to 8 are inducted as partners on investment. For registration of Ext.P1 deed of reconstitution of partnership, the 1[st] petitioner submitted an application dated 17.03.2020 before the Inspector General of Registration, as evidenced by Ext.P2 receipt. The 1[st] petitioner obtained Ext.P3 certificate of registration under sub-rule (1) of Rule 10 of the Central Goods and Services Tax Rules, 2017; and Ext.P4 trade licence dated 04.09.2020 from the 4[th] respondent Grama Panchayat, in the name of the 3[rd] petitioner, which was valid for the period from 04.08.2019 till 31.03.2020. For renewal of Ext.P4 trade licence the petitioner submitted application, as evidenced by Ext.P4(a) receipt dated 02.06.2020. 8.1. The place of business of the 1[st] petitioner firm is W.P.(C)No.11381 of 2020 10 situated in the property comprised in Re.Sy.Nos.44/7, 44/8, 44/16 and 44/17 of Meenad Village in Kollam Taluk. The business was set up by availing bank loan. The petitioners have spent huge amount in order to start the business and to bring hardware and building materials from other States and within the State, which are stored in the place of business. The materials brought twice in a month to the place of business are unloaded from vehicles by petitioners 2 to 8. The buyer will load the goods into vehicle by himself or petitioners 2 to 8 will do the loading work. The entire business is run by petitioners 2 to 8 and they have not employed any employee to work in the place of business of the 1[st] petitioner firm. The main work performed in the establishment is sale of hardware and building materials. There are no employees in the establishment for loading and unloading work, which took place only twice in a month, which is only incidental. 8.2. Earlier, when petitioners 2 to 3 were about to start business by employing the employees, the headload workers under the leadership of respondents 6 to 8 threatened them and claimed right to do headload work and other works in the establishment. Petitioners 2 and 3 in their individual capacity W.P.(C)No.11381 of 2020 11 approached this Court by filing W.P.(C)No.4453 of 2020, seeking police protection to their life and their employees to start business. This said writ petition was dismissed on 17.02.2020, for the reason that the establishment is situated in the Scheme covered area and petitioners 2 and 3 have no registered employees. On account of the dismissal of writ petition, the establishment remained closed. Later, when petitioners 2 and 3 suffered huge financial loss, the partnership was reconstituted and the business was taken over by the new partnership. 8.3. On 20.03.2020, the petitioners opened the shop and the entire work in the shop was done by petitioners 2 to 8. The new partnership has not employed any employee for loading and unloading work or other works in the establishment. On 06.05.2020, the headload workers under the leadership of respondents 6 to 8 barged into the establishment and stopped petitioners 2 to 8 from doing the work. Petitioners 2 to 8 were prevented from loading goods into the vehicle of the buyers. Respondents 6 to 8 and their men shouted and claimed that they alone are entitled to perform the loading and unloading work and other works in the establishment. Petitioners 2 to 8 were put ## W.P.(C)No.11381 of 2020 12 under fear by respondents 6 to 8 and their men, and they even attempted to close the front door of the shop. 8.4. Since respondents 6 to 8 and their men continued the threat, demanding money and obstructed the business of the establishment, the 1[st] petitioner firm submitted Ext.P5 complaint dated 11.05.2020 before the 3[rd] respondent Station House Officer, Chathannoor Police Station, seeking police protection to run the business by the partners themselves, without any obstruction from respondents 6 to 8 and their men. The 3[rd] respondent acknowledged the receipt of the said complaint vide Ext.P5(a) receipt dated 11.05.2020. Since the 3[rd] respondent failed to take any action on Ext.P5 complaint, the 1[st] petitioner submitted Ext.P6 complaint dated 13.05.2020 before the 2[nd] respondent Superintendent of Police, Kollam Rural and thereafter, moved this writ petition before this Court, seeking the reliefs as stated hereinbefore. 9. In the statement filed on behalf of the 5[th] respondent, it is stated that, the 1[st] petitioner firm is situated in Thirumukku in Chathannoor, where the Scheme under the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 W.P.(C)No.11381 of 2020 13 is operational. A pool of headload workers is existing in that area and the 1[st] petitioner firm will come within the purview of establishment as defined under clause (j) of Section 2 of the Kerala Headload Workers Act, 1978. Petitioners 2 and 3, who are the Managing Partner and Partner of the 1[st] petitioner firm, had approached this Court in W.P.(C)No.4453 of 2020, seeking police protection for loading and unloading work with their own workers in the firm. As per the averments in that writ petition, they have own workers to do the headload work. This Court by AnnexureR5(a) judgment dated 17.02.2020 dismissed that writ petition on a finding that the area where their establishment situates is a Scheme covered area. 9.1. The 5[th] respondent would point out that there is no law and order problem or labour disputes in the area and the establishment of the 1[st] petitioner is not yet operational. Anticipating objections from the headload workers, in engaging migrant labours for doing the loading and unloading work, the petitioners have preferred this writ petition, suppressing material facts. The 5[th] respondent would also point out that, Ext.P1 deed of reconstitution of partnership is executed with an intention to W.P.(C)No.11381 of 2020 14 defeat the purpose of the Kerala Headload Workers Act and the Scheme framed thereunder. The partners of the 1[st] petitioner firm are never going to do the loading and unloading work. Many of them are not in station. The earlier writ petition was dismissed on 17.02.2020 and immediately thereafter, Ext.P1 deed of reconstitution was executed in order to overcome Annexure R5(a) judgment. Since the establishment is at Thirumukku in Chathannoor, which is a Scheme covered area, the petitioners are bound to employ the pool workers and as such, they are not entitled for the reliefs sought for. 10. In the counter affidavit filed by the additional 9[th] respondent, it is stated that, in order to start business, the 2[nd] petitioner constructed a tin-sheeted building. During construction, 2[nd] and 3[rd] petitioners filed W.P.(C)No.4453 of 2020, seeking police protection to do loading and unloading work with their own workers. That writ petition was dismissed with an observation that, they cannot engage their own employees for loading and unloading activities. Thereafter, petitioners 2 and 3 created Ext.P1 deed of reconstitution of partnership only for the purpose to deny employment to registered headload workers from the W.P.(C)No.11381 of 2020 15 pool and to engage unregistered workers on their own choice. 10.1. Regarding the averment in the writ petition that the petitioners spent huge amount to start business and brought materials from other States and within the State, the additional 9[th] respondent would state that, in fact no materials are found stored in the shop building and so far no business has been started. Petitioners made such an averment only for the purpose of creating a cause of action for the writ petition. The petitioners have not started business on 20.03.2020 as alleged in the writ petition. The allegation that on 06.05.2020 the headload workers prevented petitioners 2 to 8 from doing work in the establishment is a crooked up story and there was no threat from any of the registered headload workers of Chathannoor area. The additional 9[th] respondent would point out that Ext.P4 trade licence was in the name of the 3[rd] petitioner and even after registration of the partnership deed the application for renewal of licence was filed in the name of the 3[rd] petitioner. There are several establishment in Chathannoor area, in which registered headload workers are doing loading and unloading activities without any hindrance and there is no labour dispute in those W.P.(C)No.11381 of 2020 16 establishments. Therefore, the petitioners have filed this writ petition without any cause of action. 11. In the statement filed on behalf of the 3[rd] respondent Station House Officer, it is stated that the matter was once adjudicated by this Court in Annexure R5(a) judgment in W.P. (C)No.4453 of 2020 filed by petitioners 2 and 3. In that judgment, this Court refused to provide police protection to petitioners 2 and 3, as they have no registered employees under the Kerala Headload Workers Act and the Scheme framed thereunder. The petitioners may be put to strict proof with regard to reconstitution of partnership. On receipt of Ext.P5 complaint, the 3[rd] respondent summoned party respondents to the police station, who claimed that they are entitled to do the loading and unloading activities in the establishment. Inquiry revealed that the party respondents have not created any obstruction to the smooth functioning of the establishment or there was any claim for 'nokkukooli' as alleged in the writ petition. The establishment was closed due to lock-down in the wake of COVID-19 pandemic. The demand of the party respondents is that the headload workers approved by the Labour Department shall be employed W.P.(C)No.11381 of 2020 17 in the establishment. At present there is no law and order situation, warranting police protection to the petitioners, as sought for in the writ petition. 12. The petitioners have filed reply affidavit to the statement filed by the 5[th] respondent, wherein it is stated that the 1[st] petitioner firm is engaged in the business of sale of hardware and building construction materials such as sanitary ware, pipe fittings, cement and other construction materials. In the process of commencement of business, the 2[nd] petitioner intended to unload certain materials, which are necessary for running the firm, by employing the workers in the site. Respondents 6 to 8 made obstructions and therefore, the 2[nd] petitioner along with the 3[rd] petitioner approached the 3[rd] respondent Station House Officer for police protection. Due to the political influence of respondents 6 to 8, the official respondents refused to give police protection and directed to settle the issue. Therefore, petitioners 2 and 3 had approached this Court in W.P. (C)No.4453 of 2020 seeking police protection, which culminated in Annexure-R5(a) judgment dated 17.02.2020. 12.1. Though the 2[nd] petitioner tried to settle the illegal W.P.(C)No.11381 of 2020 18 demands of respondents 6 to 8 in many ways, they were not willing to accede to any type of compromise and threatened him by saying that they will not allow the business to continue. In order to start business, petitioners 2 and 3 had constructed a building having an area of 7198 sq.ft. and invested huge amount. They availed cash credit (hypothecation) facility for Rs.150 lakhs towards working capital from the State Bank of India, Commercial Branch, Kollam, as evidenced by Ext.P8 letter of arrangement dated 17.01.2020. Due to the unexpected obstruction from respondents 6 to 8, they could not commence business and were not able to pay off the EMI for the credit facility availed. Since petitioners 2 and 3 were in financial stringency, they sought financial assistance from other sources, i.e., from friends and relatives. 12.2. On coming to know about the financial crisis, petitioners 4 and 6, who were earlier cooperating with the establishment, and who were about to be employed in the establishment, informed their desire to join the business. Accordingly, they were inducted in the partnership. Petitioners 2 and 3 have also approached petitioners 5 and 7 to 8 seeking W.P.(C)No.11381 of 2020 19 financial assistance and they also expressed their desire to join the partnership and accordingly, it was decided to include petitioners 4 to 8 in the partnership. The partnership was accordingly reconstituted by Ext.P1 deed of reconstitution, which has already been registered as evidenced by Ext.P2 receipt issued by the Inspector General of Registration dated 17.03.2020. The intention for reconstitution of partnership was to run the business and not to defeat any claim or rights of the party respondents. 12.3. After reconstitution of the partnership, the business was started on 20.03.2020. The Government of India declared complete lockdown on 24.03.2020, in the wake of COVID-19 pandemic and hence the firm was closed. Thereafter, adhering to COVID-19 protocol, the firm started functioning partially. Ext.P9 is a photocopy of tax invoice No.TAU2411201910 dated 07.05.2020 issued to M/s.St.Antony Traders, Chengulam [sic: Chenkulam in Kollam District] regarding sale of 308 bags of Birla Shakti Cement for a total sum of Rs.1,14,268/-. The delivery location in Ext.P9 tax invoice is at Thiruvananthapuram. 12.4. After reopening, the entire job in the shop is being done by the 2[nd] petitioner along with petitioners 3 to 8. The new W.P.(C)No.11381 of 2020 20 partnership has not employed any employee for doing loading and unloading work or other works in the establishment. On coming to know that the entire work in the establishment is being done by petitioners 2 to 8, the headload workers in the area, under the leadership of respondents 6 to 8, started harming the business of the firm. On 06.05.2020, the headload workers under the leadership of respondents 6 to 8 barged into the establishment and prevented petitioners 2 to 8 from loading goods to the vehicles of the buyers. After that incident, the 1[st] petitioner sought police protection by submitting Ext.P5 complaint before the 3[rd] respondent and Ext.P6 complaint before the 2[nd] respondent. 12.5. The petitioners would state that Ext.P1 deed of reconstitution of partnership was executed not with an intention to defeat the purpose of Kerala Headload Workers Act. Due to illegal demands from respondents 6 to 8, petitioners 2 and 3 fell into heavy financial difficulty, and when there was no other way, they accepted the help of petitioners 4 to 8, who are also inducted into the partnership. Petitioners 2 to 8 are active partners of the firm and they are very much in the establishment ## W.P.(C)No.11381 of 2020 21 from opening to closing time. They have no intention to engage any migrant labours to do any work in the firm. The headload work in the firm is incidental and not the main work and they are now doing all work, including headload work in the firm. 12.6. As provided in Section 12 of the Indian Partnership Act, 1932, petitioners 2 to 8 have the right to participate in the business and do all loading and unloading work. Every partner has the right to take part in the conduct of the business, subject to contract between the partners. The partnership is the business with multiple owners, each of whom has invested in the business and they are entitled to get their remuneration and share profit and suffer loss. In Ext.P10 judgment dated 27.03.2019 in W.P. (C)No.37883 of 2018, the Division Bench of this Court found that the partners of a firm have right to do the loading and unloading work even though the firm is situated in Scheme covered area. In case the parties are in need of workers from outside, they can employ the workers from the pool provided by the Committee in accordance with the Scheme until parties engage their own workers under Rule 26A of the Kerala Headload Workers Rules, 1981. The petitioners have not suppressed any material facts W.P.(C)No.11381 of 2020 22 from the notice of this Court. They have the right to continue their business and respondents 6 to 8 have no right to prevent the petitioners from doing their work in the firm. 13. 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 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 W.P.(C)No.11381 of 2020 23 Schedule and includes the precincts thereof. 13.1. 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 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 W.P.(C)No.11381 of 2020 24 Section 2 of the Act define 'scheme' to mean a scheme made under this Act. 13.2. 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 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. Section 13 of the Act deals with scheme. As per sub-section (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 W.P.(C)No.11381 of 2020 25 notification add to, amend or vary and such scheme or substitute another scheme for any such scheme. As per the proviso to subsection (1) of Section 13 provides that no such notification shall come 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. 13.3. Section 25 of the Act deals with register of headload workers. As per sub-section (1) of Section 25, such authority or officer as may be prescribed shall prepare a register of headload workers working within its or his jurisdiction. Section 26 of the Act deals with maintenance of registers and records by employers. As per sub-section (1) of Section 26, every employer shall maintain such registers and records as may be prescribed. As per sub-section (2) of Section 26, the registers and records refined to in sub-section (1) shall contain such particulars and shall be countersigned by such officer and shall be kept in such W.P.(C)No.11381 of 2020 26 place, as may be prescribed. 13.4. Section 28 of the Act deals with penalty for making false statement, etc. As per Section 28, whoever for the purpose of avoiding any payment to be made by him under this Act or under a scheme or for enabling any other person to avoid such payment, knowingly makes or causes to be made any false statement or false representation, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Section 29 deals with other penalties. 13.5. As per Section 29, whoever contravenes or makes default in complying with any of the provisions of this Act or a scheme or of any rule made under this Act shall, if no other penalty is elsewhere provided by or under this Act for such contravention or non-compliance, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both, and, in the case of a continuing contravention, with an additional fine which may extend to one hundred rupees for every day during which such contravention continues after conviction for W.P.(C)No.11381 of 2020 27 the first such contravention. 14. In exercise of the powers conferred under Section 43 of the Act, the Government of Kerala made the Kerala Headload Workers Rules, 1981. Rule 26 of the said Rules deals with preparation of registers. As per Rule 26, the Assistant Labour Officer shall be the authority to prepare a register of headload worker working in the area within his jurisdiction and the register shall be in Form No.IV. Rule 26A deals with registration of headload workers. As per sub-rule (1) of Rule 26A, any headload worker may submit his application for registration in Form No.IX to the registering authority concerned, with as many additional copies as there are employers or contractors from whom he claims to work. As per sub-rule (2) of Rule 26A, on receipt of such application, the registering authority shall issue notice in Form No.X to the employers or contractors from whom the headload worker claims work and in area where the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 is in operation, to the Chairman of the Kerala Headload Workers Welfare Board Local Committee, in such area with copy of the application inviting objections, if any, on such W.P.(C)No.11381 of 2020 28 application. 14.1. As per sub-rule (3) of Rule 26A, after considering the objections, if any, received and after giving an opportunity of being heard, the Registering Authority shall register the name of the headload worker in the Register of Headload Workers, on being satisfied that the headload worker is eligible for registration and communicate the fact to the parties within two weeks of such registration. The Registering Authority shall also issue identity card to the registered headload worker in Form XI. If the name is not registered, the Registering Authority shall communicate the fact to the applicant with reasons therefor. 14.2. Rule 27 of the Rules deals with maintenance of registers and records by the employers. As per sub-rule (1) of Rule 27, every employer shall maintain a Register of Employment and Wages in Form No.V. As per sub-rule (2) of Rule 27, every employer shall supply to every headload worker wage in Form No.VI on every Saturday, containing particulars for the week ending on that day. As per sub-rule (3) of Rule 27, the registers and records maintained under these rules shall be made available and produced or caused to be produced for inspection at all W.P.(C)No.11381 of 2020 29 reasonable hours by an Inspector. As per sub-rule (4) of Rule 27, the registers and records required to be maintained under these rules shall be kept at the work-spot or in the office of the employer and the entries therein relating to each day shall be made on the same day. As per sub-rule (5) of Rule 27, the employer shall obtain the signature or thumb impression of every headload worker in the Register of Employment and Wages and on the wage card at the time of the disbursement of wages. 15. 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. As per sub-para (1) of Para.6, no headload worker who is not a registered headload worker under the provision of the Kerala Headload Workers Rules shall be W.P.(C)No.11381 of 2020 30 allowed or required to work in any area to which the Scheme applies from the date of commencement of the functional operation of Scheme in the area. As per sub-para (2) of Para.6, from the date of commencement of the functional operation of the Scheme in any area, no headload worker who is not permanently employed by an employer or contractor shall be allowed or required to work in any area to which the Scheme applies unless he is granted a further registration under the provisions of this Scheme. 15.1. Para.6A of the Scheme deals with registration of headload workers under the Scheme at the commencement of the scheme. As per Para.6A, at the commencement of the Scheme in any area a headload worker who is not permanently employed by an employer or contractor and who is not permanently employed by an employer or contractor and who is registered under the provisions of the Kerala Headload Workers Rules may submit his application in Form A to the Convener of the Committee concerned for registration in the Committee under the Scheme along with two passport size photographs. 15.2. Para.6B of the Scheme deals with procedure for W.P.(C)No.11381 of 2020 31 replenishment of workers in the rolls of the Committee. As per sub-para (1) of Para.6B, during March of every year the Committee may assess the probable number of workers that may be required additionally on account of retirement on superannuation, death, disability, resignation, removal and expansion of the Scheme and resolve to register such number of additional workers in the Committee. As per sub-para (3) of Para.6B of the Scheme, any person already registered under the provisions of the Kerala Headload Workers Rules for a period of at least two years prior to the date of notice inviting the applications may within a period of 4 weeks from the date of that notice submit an application in Form A to Convener along with the photographs as required in sub-para (1) of Para.6A of the Scheme 15.3. Para.7 of the Scheme deals with registration of employers. As per sub-para (1) of Para.7, e very employer in the area who engages or employs headload 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 W.P.(C)No.11381 of 2020 32 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. As per sub-para (2) of Para.7, the employer who is not applying for registration within the specified time shall be liable to pay an additional fee of Rs.5 per day for the entire period of delay. As per sub-para (3) of Para.7, the employer shall also furnish necessary details or records to prove their identity, correct address, ownership of the firm, etc., when called upon to do so by the Chairman or convenor of the Committee or an officer authorised by the Board. As per sub-para (4) of Para.7, a register of employers shall be maintained in the Committee showing the particulars of the employers registered. As per Note to sub-para (4) of Para.7, an employer in the Scheme area who employs headload workers on a permanent and regular basis by maintaining the register of employment and wages in Form No.V of the Kerala Headload Workers Rules, 1981 under the said Rules shall be exempted from the registration under Para.7, if such employer produces sufficient proof that he keeps all records in respect of such permanent headload workers as stipulated in the W.P.(C)No.11381 of 2020 33 Kerala Headload Workers (Attached Group) Welfare Scheme, 1995 employed in the establishment and if he does not require the services of the headload workers covered in this Scheme. 15.4. Chapter III of the Scheme deals with obligation of headload workers and employers. As per Para.8 of the Scheme, every registered headload worker to whom registration has been granted by the convenor of the committee shall work only in the area of allotment made by the committee. As per Para.9 of the Scheme, every headload worker shall handle every article with utmost care so that no damage is caused to the article. As per Para.10 of the Scheme, every headload worker shall be deemed to be employed by the Committee of that area and his work shall be supervised by the person for whom the workers have been allotted, as well as by any officer of the Committee. As per Para.11 of the Scheme, after coming into force of this Scheme for an area, no headload worker shall be employed or paid wages except in accordance with the provisions in the Scheme. 15.5. Chapter VI of the Scheme deals with regulation of employment of registered headload workers. As per Para.19 of the Scheme, the Committee shall determine the number of W.P.(C)No.11381 of 2020 34 headload workers needed for their area and for this purpose increase or decrease the number in their register. As per Para.20 of the Scheme, 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. As per Para.21 of the Scheme, an employer requiring the services of headload workers shall from time to time intimate the Convener the number of workers needed by him and the Convener shall allot such number of registered workers for that employer. 15.6. As per Para.22 of the Scheme, as soon as the work for the day is over, the employer shall send to the Convenor through the worker a statement of work done (work card), with such details in Form No.B appended to this Scheme. Such forms will be made out in triplicate, for enabling the employer to keep the triplicate copy, the second copy with the worker of the pool concerned and the original copy with the Convenor of the Committee. After noting the wages and welfare levy amounts due the copy of Form No.B received by the Committee shall be kept employer-wise as record. As per Para.23 of the Scheme, on receipt of the details of work done the Convener shall arrange to W.P.(C)No.11381 of 2020 35 enter the wages and other details thereof in a Register maintained for the purpose. 15.7. Para.24A of the Scheme deals with removal of workers from rolls. As per sub-para (1) of Para.24A, notwithstanding anything contained in this Scheme, if a headload worker in rolls of the Committee is continuously absent from work without sufficient reason or has not earned wages through the Committee for a period of 60 days or has not earned wages at least for 90 days continuously in an year, the Chairman shall issue a notice by registered post requiring him to show cause within 7 days or within such extended period as may be allowed by the Chairman as to why his name should not be removed from the rolls of the Committee and his registration under Rule 26A and sub-para (2) of Para.6A be cancelled. 16. As already noticed in the order dated 09.11.2020, during the course of arguments, the learned counsel for the petitioners referred to the averments in paragraph 8 of W.P.(C). No.4453 of 2020, in which the details of the permanent employees engaged by petitioners 2 and 3 are mentioned, which include the 4 th petitioner Prakash and the 6 th petitioner Shabu. In W.P.(C)No.11381 of 2020 36 the Judges papers of W.P.(C)No.4453 of 2020, after paragraph 7 of the statement of facts in page 7, the next page, i.e., page 8 starts with ground B. In the copy of W.P.(C)No.4453 of 2020 served in the office of the learned Advocate General on 14.02.2020, which was placed on record along with a memo filed by the learned Senior Government Pleader dated 11.11.2020, pursuant to the order dated 09.11.2020, as well, after paragraph 7 of the statement of facts in page 7, the next page starts with ground B. 17. Today, when the matter is listed in physical court, the learned counsel for the petitioner has made available for the perusal of this Court a copy of W.P.(C)No.4453 of 2020 filed by the petitioner on 14.02.2020, through Adv. M.R.Sasith. As per that copy, the averments in paragraph 8 of the statement of facts in W.P.(C)No.4453 of 2020 are as follows; “8. Without the intervention of the Hon'ble Court, there is all likelihood of law and order situation arising and the petitioner apprehends great danger, if respondents 3 to 5 are let to continue with his illegal actions as long as the petitioner is unable to resist their illegal actions. It is submitted that the petitioners have their five workers, namely, Shabu, Prakash, Rajesh Babu, Sirosh Chellappan, W.P.(C)No.11381 of 2020 37 Alkayees Rejas and they submitted application before the 6[th] respondent for appointing them as their headload workers.” (underline supplied) 18. As borne out from the pleadings and materials on record, the 1[st] petitioner firm is situated in Thirumukku in Chathannoor, where the Scheme under the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme is operational. The 1[st] petitioner firm will come within the purview of establishment, as defined under clause (j) of Section 2 of the Kerala Headload Workers Act. A pool of headload workers is existing in Thirumukku in Chathannoor. The above facts are not in dispute. By Annexure R5(a) judgment dated 17.02.2020, this Court dismissed W.P.(C)No.4453 of 2020 filed by the 2[nd] and 3[rd] petitioners herein seeking an order directing the 2[nd] and 3[rd] respondents herein to provide them and their workers/employees adequate and effective police protection to their life to carryout and function their business including loading and unloading of materials, without any obstruction, restriction and interference from the part of respondents 6 to 8 herein and their men. [See: Prayer (a) in W.P.(C)No.4453 of 2020] 19. In Annexure R5(a) judgment this Court noticed that W.P.(C)No.11381 of 2020 38 the establishment in question is situated in Scheme covered area. In that writ petition, the petitioners have no case that they have registered workers. In Annexure R5(a) judgment this Court held that, in the absence of registered workers, the petitioners cannot engage their own employees for loading and unloading. Therefore, this Court dismissed the writ petition giving liberty to the petitioners to approach the jurisdictional Labour Officer for registration. In the absence of any challenge, the finding in Annexure R5(a) judgment has attained finality. In view of Annexure R5(a) judgment, the proper course open to the petitioners was to have considered by the jurisdictional Labour Officer the applications for registration of their own employees as headload workers. 20. After the dismissal of W.P.(C)No.4453 of 2020 by Annexure R5(a) judgment dated 17.02.2020, the petitioners 2 and 3 reconstituted the partnership by Ext.P1 deed of reconstitution dated 01.03.2020, by inducting petitioners 4 to 8 as partners. The specific stand taken by the additional 9[th] respondent is that, after the dismissal of W.P.(C)No.4453 of 2020, the 2[nd] and 3[rd] petitioners reconstituted the partnership by W.P.(C)No.11381 of 2020 39 inducting petitioners 4 to 8 as partners, who are only the employees of the firm. As already noticed, in paragraph 8 of W.P. (C)No.4453 of 2020 filed by petitioners 2 and 3, seeking an order directing the 2[nd] and 3[rd] respondents herein to provide them and their workers/employees adequate and effective police protection to their life to carryout and function their business including loading and unloading of materials, the name of five headload workers employed in the 1[st] petitioner firm is mentioned, which th th includes the 4 petitioner Prakash and the 6 petitioner Shabu. In this writ petition, the petitioners have not disclosed that, among the newly inducted partners, the 4[th] petitioner Prakash and the 6[th] petitioner Shabu were shown in W.P.(C)No.4453 of 2020 as the employees engaged by the 1[st] petitioner firm for loading and unloading work. 21. Relying on Ext.P8 letter of arrangement issued by the State Bank of India, Commercial Branch, Kollam, regarding cash credit (hypothecation) facility for Rs.150 lakhs towards working capital, it is stated in the reply affidavit filed to the statement filed on behalf of the 5[th] respondent that, the 2[nd] petitioner had availed huge loan for conducting the business. In Ext.P8 letter of W.P.(C)No.11381 of 2020 40 arrangement dated 17.01.2020 the 2[nd] petitioner is shown as the Managing Partner and the 3[rd] petitioner is shown as the Partner of the 1[st] petitioner firm. In the reply affidavit it is stated that, since business could not be commenced the 2[nd] and 3[rd] petitioners could not pay off the EMI for the credit facility availed to run the business. On coming to know about the financial crisis, petitioners 4 and 6, who were earlier cooperating with the establishment and who were about to be employed in the establishment, informed their desire to join the business. Accordingly, they were inducted in the partnership. Petitioners 2 and 3 have also approached petitioners 5 and 7 to 8 seeking financial assistance and they also expressed their desire to join the partnership and accordingly, it was decided to include petitioners 4 to 8 in the partnership. The partnership was accordingly reconstituted by Ext.P1 deed of reconstitution dated 01.03.2020. If, as a matter of fact, the 2[nd] and 3[rd] petitioners have availed the cash credit facility based on Ext.P8 letter of arrangement dated 17.01.2020, any reconstitution of partnership is permissible only with the prior permission of the Bank. In this writ petition the petitioners have no such case. W.P.(C)No.11381 of 2020 41 22. The specific case of the petitioners is that the reconstitution of partnership by Ext.P1 deed of reconstitution dated 01.03.2020 was due to financial stringency. As can be seen from Clause 3 of Ext.P1 deed of reconstitution, which deals with additional capital, the additional capital brought by petitioners 4 - to 8 is only Rs.50,000/ (10,000 x 5). As per Clause 4 of Ext.P1, which deals with profit sharing ratio of the reconstituted firm, the net profit and/or loss of the reconstituted firm shall be shared by petitioners 2 and 3, who are the existing partners at the rate of 35% each and by petitioners 4 to 8, who are the newly inducted partners at the rate of 6% each. 23. Going by the averments in the reply affidavit, in order to start business, petitioners 2 and 3 had constructed a building having an area of 7198 sq.ft. The cash credit (hypothecation) facility availed by petitioners 1 to 3 towards working capital is Rs.150 lakhs. On reconstitution of the partnership, vide Ext.P1 deed of reconstitution, by inducting petitioners 4 to 8 as new partners, a total sum of Rs.50,000/- only was brought as additional working capital. When two among the new partners, i.e., the 4[th] petitioner Prakash and the 6[th] petitioner Shabu were W.P.(C)No.11381 of 2020 42 shown in W.P.(C)No.4453 of 2020 as the employees engaged by the 1[st] petitioner firm for loading and unloading work, conclusion is irrepressible that, by way of Ext.P1 deed of reconstitution, petitioners 2 and 3 are attempting to run the 1[st] petitioner firm, which is situated in a Scheme covered area, by engaging unregistered headload workers, thereby defeating the right of registered pool workers in Thirumukku in Chathannoor. 24. Going by the averments in the writ petition, the 1[st] petitioner firm is engaged in the business of sale of hardware and building construction materials. The 2[nd] petitioner is the Managing Partner of the firm and the 3[rd] petitioner, who is the wife of the 2[nd] petitioner, is the partner of the firm. Petitioners 2 and 3, had constructed a building having an area of 7198 sq.ft., to deal with large quantity of hardware and building construction materials. The petitioners would contend that the entire business is run by petitioners 2 to 8 and they have not employed any employee in the place of business of the 1[st] petitioner firm. The materials brought twice in a month to the place of business are unloaded from vehicles by petitioners 2 to 8. There are no employees in the establishment for loading and unloading work, which took W.P.(C)No.11381 of 2020 43 place only twice in a month, which is only incidental. The buyer will load the goods into vehicle by himself or petitioners 2 to 8 will do the loading work. 25. In order to show that, adhering to COVID-19 protocol, the the 1[st] petitioner firm started functioning partially, the petitioners have placed on record Ext.P9 tax invoice dated 07.05.2020 issued to M/s.St.Antony Traders, Chengulam [sic: Chenkulam in Kollam District]. The said tax invoice is regarding sale of 308 bags of Birla Shakti Cement for a total sum of Rs.1,14,268/-. The weight of each bag of cement is 50kg. Considering the quantity of cement sold as per Ext.P9 tax invoice (308 x 50kg = 15,500kg) it cannot be said that loading and unloading work in the 1[st] petitioner firm is only incidental. The case of the 2[nd] petitioner and his wife that they are doing loading and unloading work in the firm, along with petitioners 4 to 8, can only be disbelieved. The intention of petitioners 2 and 3 in reconstituting the firm by Ext.P1 deed of reconstitution is only to see that the own headload workers of the 1[st] petitioner firm, who do not have registration, is permitted to undertake the loading and unloading work in a Scheme covered area, thereby defeating W.P.(C)No.11381 of 2020 44 the right of registered pool workers in that area. 26. Relying on Ext.P10 decision of the Division Bench of this Court in **Muhammed Rashid and others v. Commissioner** **of Police and others** [Judgment dated 27.03.2019 in W.P. (C)No.37883 of 2018] the learned counsel for the petitioners would contend that, as per Section 12(a) of the Indian Partnership Act, 1932 every partner has a right to take part in the conduct of the business, subject to contract between the partners. Going by the scheme of the Partnership Act, it is clear that a partnership is business with multiple owners each of whom has invested in the business. Relying on the provisions under Section 12(a) of the Act, and also clause (m) of Section 2 of the Kerala Headload Workers Act, 1978, which define the term 'headload worker', the Division Bench held that the petitioners' establishment is not employing workers for loading and unloading and the petitioners being partners of the firm, are doing loading and unloading works directly in the capacity as owners of the establishment. Going by the definition contemplated under clause (m) of Section 2 of the Kerala Headload Workers Act, there must be employer-employee relationship between the parties to W.P.(C)No.11381 of 2020 45 engage a headload worker in a Scheme covered area. The petitioners are the owners of the partnership firm. The law does not permit them to make an application for the issuance of Rule 26A card. The party respondents - Unions have no right to obstruct the petitioners or prevent them from loading and unloading ceramic tiles, granite and marble flooring materials within the premises. In the event of the petitioners employing workers for loading and unloading, no doubt the establishment must be covered under the Scheme and the petitioners are legally obliged to engage workers from the pool as contemplated under the scheme. 27. A reading of Ext.P10 decision of the Division Bench in **Muhammed Rashid** would show that, in the said case none of the respondents have disputed Ext.P1 deed of partnership dated 30.10.2018. The only contention raised by the 6[th] respondent Kerala Headload Workers Welfare Board was that the partnership deed is not seen registered and the establishment of the petitioners is yet to be operated. In paragraph 9 of the decision the Division Bench it was noticed that, though the firm was initially not registered, but that defect was subsequently cured. W.P.(C)No.11381 of 2020 46 In the instant case, after the dismissal of W.P.(C)No.4453 of 2020 by Annexure R5(a) judgment dated 17.02.2020, the 2[nd] and 3[rd] petitioners reconstituted the partnership by Ext.P1 deed of reconstitution dated 01.03.2020, by inducting petitioners 4 to 8 as partners. The specific stand taken by the additional 9[th] respondent is that, after the dismissal of W.P.(C)No.4453 of 2020, the petitioners 2 and 3 reconstituted the partnership by inducting petitioners 4 to 8 as partners, who are only the employees of the firm. Among the newly inducted partners, the 4[th] petitioner Prakash and the 6[th] petitioner Shabu were shown in W.P.(C)No.4453 of 2020 as the employees engaged by the 1[st] petitioner firm for loading and unloading work. Though the specific case of the petitioners is that the reconstitution of partnership by Ext.P1 deed of reconstitution dated 01.03.2020 was due to financial stringency, as can be seen from Clause 3 of Ext.P1 deed of reconstitution, which deals with additional capital, the additional capital brought by petitioners 4 to 8 is only - Rs.50,000/ (10,000 x 5). In the instant case, considering that facts and circumstances of the case, this Court has arrived at a conclusion that, by way of Ext.P1 deed of reconstitution W.P.(C)No.11381 of 2020 47 petitioners 2 and 3 are attempting to run the 1[st] petitioner firm, which is situated in a Scheme covered area, by engaging unregistered headload workers, thereby defeating the right of registered pool workers in Thirumukku in Chathannoor. Therefore, the law laid down in the decision of the Division Bench in **Muhammed Rashid** has no application to the facts of the instant case. 28. As per sub-section (1) of Section 9A of the Kerala Headload Workers Act, subject to the provisions of this Act, an employer shall engage a headload worker registered under the Act in connection with work of his establishment. In view of the provisions under 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, if their services have been engaged by the employer or the owner of an establishment. Section 28 of the Act deals with penalty for making false statement, etc., for the purpose of avoiding any payment to be made by him under this Act or under a scheme or for enabling any other person to avoid such payment, knowingly makes or causes to be made any false statement or false W.P.(C)No.11381 of 2020 48 representation. As per Para.11 of the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, after coming into force of this Scheme for an area, no headload worker shall be employed or paid wages except in accordance with the provisions in the Scheme. Therefore, petitioners 2 and 3, who are the Managing Partner and Partner of the 1[st] petitioner firm cannot be permitted to engage unregistered headload workers for loading and unloading work, after inducting such workers as partners of the firm. 29. The specific stand taken in the statement filed on behalf of the 3[rd] respondent Station House Officer is that, the party respondents have not created any obstruction to the smooth functioning of the establishment or there was any claim for 'nokkukooli' as alleged in the writ petition. The demand of the party respondents is that the only registered headload workers shall be employed in the establishment. The 3[rd] respondent has also stated that, at present there is no law and order situation, warranting police protection as sought for in this writ petition. 30. Since the 1[st] petitioner firm, which is situated in a Scheme covered area, is not having registered headload workers, W.P.(C)No.11381 of 2020 49 petitioners 1 to 3 are not entitled for an order of police protection as sought for in this writ petition. In Annexure R5(a) judgment in W.P.(C)No.4453 of 2020 this Court gave liberty to the 2[nd] and 3[rd] petitioners herein to approach the jurisdictional Labour Officer for registration of its own headload workers. Therefore, this writ petition is disposed of by giving liberty to the the 1[st] petitioner firm to approach the jurisdictional Labour Officer for registration its own headload workers. Till such registration is obtained, petitioners 1 to 3 shall engage registered pool workers in Thirumukku in Chathannoor for loading and unloading work in the establishment in question. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** ## W.P.(C)No.11381 of 2020 50 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE DEED OF RECONSTITUTION OF PARTNERSHIP EXECUTIVE ON 01/03/2020** **EXHIBIT P2** - **PHOTOCOPY OF THE RECEIPT DATED 17.03.2020 ISSUED BY THE REGISTRATION INSPECTOR GENERALS OFFICE, THIRUVANANTHAPURAM** - **EXHIBIT P3 PHOTOCOPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE GOVERNMENT OF INDIA (FORM GST)** - **EXHIBIT P4 PHOTOCOPY OF THE LICENSE DATED 04.09.2019 ISSUED BY THE SECRETARY. CHATHANNOOR,** - **EXHIBIT P4A PHOTOCOPY OF THE RECEIPT ISSUED BY THE CHATHANNUR GRAMA PANCHAYAT** - **EXHIBIT P5 PHOTOCOPY OF THE COMPLAINT DATED 11.05.2020 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT** - **EXHIBIT P5A PHOTOCOPY OF THE RECEIPT DATED 11.05.2020 ISSUED FROM THE CHATHANNOOR POLICE STATION** **EXHIBIT P6 PHOTOCOPY OF THE COMPLAINT DATED 13.05.2020 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT** W.P.(C)No.11381 of 2020 51 **EXHIBIT P7: LICENCE NO.163/2020-2021/c4/3124 DTD. 16/06/2020 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P8: PHOTOCPY OF THE SANCTION OF CREDIT FACILITY BY THE STATE BANK OF INDIA, KOLLAM COMMERCIAL BRANCH DATED 17/1/2020** **EXHIBIT P9: PHOTOCOPY OF THE TAX INVOICE SHOWING THE SALE CONDUCTED IN THE CONCERN OF THE PETITIONER DATED 07/05/2020 AND 10/05/2020** **EXHIBIT P10: PHOTOCOPY OF THE JUDGMENT DATED 27/03/2019 IN W.P.(C).NO.37883/2018.** ## **RESPONDENTS' EXHIBITS:** **ANNEXURE R5(a): COPY OF JUDGMENT IN W.P.(c).NO.4453/2020 DTD. 17.2.2020** **TRUE COPY** **P.A. TO JUDGE**