ThripuraJ A.B. v. State of Kerala and others (W.P(C) No. 19719/2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **& THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932** **WP(C).No. 19719 of 2010(L)** **------------------------------------** ## **PETITIONER(S):** **---------------** **THRIPURAJ A.B., S/O.BHASKARAN, DOOR NO.VI/422, ACKARAKAVU HOUSE, MATHUR AGRAHARAM P.O., PALAKKAD.** **BY ADV. SRI.K.S.BABU SMT.N.SUDHA** ## **RESPONDENT(S):** **--------------------------** ## **1. STATE OF KERALA,** **REP. BY THE SECRETARY TO HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM. 695001** **2. SUPERINTENDENT OF POLICE, PALAKKAD, OFFICE OF SUPERINTENDENT OF POLICE, PALAKKAD DISTRICT.678 001.** **3. CIRCLE INSPECTOR OF POLICE, OFFICE OF THE CIRCLE INSPECTOR OF POLICE, KUZHALMANNAM, ALATHUR, PALAKKAD DISTRICT.678 572** **4. SUB INSPECTOR OF POLICE, KOTTAYI POLICE STATION, ALATHUR TALUK, PALAKKAD DISTRICT.678 572.** **5. CIT UNION, KOTTAYI, PALAKKAD DISTRICT, REP. BY ITS SECRETARY.678 573.** **tss** **W.P.(C) NO.19719/2010** ## **ADDL. 6TH RESPONDENT** **6. KERALA HEAD LOAD WORKERS WELFARE BOARD, PALAKKAD DISTRICT COMMITTEE, REP.BY ITS CHAIRMAN, PIN 678 001.** ## **ADDL. R7 IMPLEADED.** **7. THE ASSISTANT LABOUR OFFICER, PALAKKAD.** ## **IS SUO MOTU IMPLEADED AS PER ORDER DTD. 22.12.2010 IN WP(C)** **R1 TO R4 BY GOVT. PLEADER SMT.CHARISMA** **R5 BY ADV. SRI.RAJESH SIVARAMANKUTTY SRI.KOSHY GEORGE, SC, KHLWWB FOR ADDL.R6** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **R.BASANT & K.SURENDRA MOHAN, JJ. ************************* ## **W.P(C) No.19719 of 2010** ## ********************************* Dated this the 19[th] day of January, 2011 ## **JUDGMENT** ## BASANT, J. The petitioner has come to this Court with this petition for issue of directions under Article 226 of the Constitution of India to respondents 1 to 4 to afford police protection to the petitioner to enable him to get the work of loading and unloading done in his micro establishment without any intervention or obstruction by the 5[th] respondent, a trade union of loading and unloading workers. The Headload Workers' Welfare Board, Palakkad, has been arrayed as additional 6[th] respondent. The Assistant Labour Officer (A.L.O), Palakkad, was subsequently arrayed suo motu by the Court as additional 7[th] respondent. 2. According to the petitioner, he runs a hollow bricks small scale industry by name “Blue Sea Hollow Bricks”. He has permanent workers to work for him in the factory. It is not denied that there is loading and unloading work in the establishment. According to the petitioner, the unloading work is done mechanically without employing any worker, whereas the work of loading is done by the employer personally and by other workmen engaged. Admittedly no permanent worker working in the petitioner's establishment has been registered under the **W.P(C) No.19719 of 2010** 2 Kerala Head Load Workers Act as permanent/attached worker of the petitioner. Admittedly the area is a scheme covered area. According to the petitioner, the work of loading and unloading is only ancillary and incidental to the main work that goes on in the establishment. The petitioner takes the stand that inasmuch as the work is incidental and ancillary, he is not bound to have permanent registered workers in his establishment to do loading and unloading work. He asserts right to get the work done by permanent workers of his establishment without any obstruction from the 5[th] respondent. As respondents 1 to 4 have not provided police protection in spite of his request, the petitioner has come to this Court with this petition. 3. Certain fundamental facts are not in dispute. There is work of loading and unloading in the hollow bricks manufacturing unit of the petitioner. The area is a scheme covered area. Admittedly the permanent employees of the petitioner have not applied and got registered under the Act and Rules. According to the petitioner, the petitioner is not liable to so register his permanent employees as loading and unloading workers because the work is purely incidental and ancillary. The learned counsel for the petitioner takes the stand that the **W.P(C) No.19719 of 2010** 3 decision of the Full Bench in **Raghavan v. Superintendent of Police** [1998 (2) KLT 732] as explained by the decision in **Obrin v. Sub Inspector of Police** [2005(3) KLT 861] does not oblige the employers in whose establishment loading and unloading work is only incidental to the main work to register permanent workers under the Act and Rules. In these circumstances, it is prayed that police protection may be afforded to the petitioner to get the incidental and ancillary work of loading and unloading performed by himself and other workers employed in his industrial unit, who perform other work mainly in addition to the incidental work of loading and unloading. 4. If the Act would apply, there can be no dispute that the permanent workers attached to an establishment who are engaged in the work of loading and unloading can also be registered under the Act and Rules. The petitioner claims exemption from that rule by insisting that the work is only incidental and ancillary to the main work. The question whether the work is incidental or ancillary, will have to be determined in accordance with the provisions of the Act and Rules. It would be idle to assume that the work of loading and unloading must be the principal work in an establishment to attract the application **W.P(C) No.19719 of 2010** 4 of the Act and Rules. We are not entering into that controversy at the moment. We shall assume that the decision in **Obrin v. Sub Inspector of Police** (supra) lays down the law correctly. Even then the question whether the work is incidental or ancillary will have to be resolved in accordance with machinery provided under the Act. Under Section 21, that dispute can be resolved. We have, of course, called for a report from the additional 7[th] respondent, the A.L.O. The report of the A.L.O does not evidently favour the petitioner. The learned counsel for the petitioner submits that the said report may not be accepted. Under Section 21, when there is a dispute, the conciliation conferences are to be held by the A.L.O, ie. the 7[th] respondent in this case. He has to submit a report to the conciliation officer, who has to continue the efforts for conciliation and if the conciliation does not culminate in a settlement, he must take decisions on the relevant questions. Such decision of the conciliation officer will be subject to an appeal also before the appellate authority. We are satisfied that in the facts and circumstances of this case, the A.L.O, the 7[th] respondent, who already appears to have taken steps for conciliation, must continue further with his efforts in accordance with Section 21 of **W.P(C) No.19719 of 2010** 5 the Act and the disputes must be resolved in accordance with Section 21, which decision will bind the parties. At the moment and with the available inputs, we find it unnecessary and inexpedient to attempt to resolve that dispute by us in the pending proceedings. 5. One short question remains. Till the dispute is resolved, should this Court issue any interim directions? No interim directions have been issued by this Court in the matter so far. The A.L.O has already almost completed his assignment as he has submitted his report to this Court. We do not expect that a long further time will be required for resolution of the dispute in accordance with Section 21 of the Act. We do not, in these circumstances, think it necessary to issue any interim directions pending resolution of the dispute under Section 21 of the Act. 6. However, we take note of the submission of the learned counsel for the petitioner that the employer himself is performing the work now. The learned counsel for respondents 5 and 6 submit that if the employer himself would do the work of loading and unloading, no objection whatsoever can and shall **W.P(C) No.19719 of 2010** 6 be raised by respondent No.5. Police protection can be ordered to enable the petitioner to get the work of loading and unloading done by himself, but protection may not be afforded to get the work done by unregistered workers without and before settlement of the dispute under Section 21 of the Act, submits the learned counsel for respondent No.5. That course is endorsed by the learned counsel for the additional 6[th] respondent also. 7. This petition is, in these circumstances, allowed in part. If the petitioner would himself do the work of loading and unloading without employing any workmen to undertake such work, respondents 1 to 4 shall afford adequate police protection for the petitioner. His right to get the work done by unregistered permanent workers of his establishment will, of course, have to follow the decision arrived at by following the course under Section 21 of the Act. We direct the additional 7[th] respondent to take the necessary steps under Section 21 of the Act forthwith to enable the parties to settle their disputes or get **W.P(C) No.19719 of 2010** 7 such disputes resolved by following the machinery prescribed under Section 21 of the Act, as expeditiously as possible. **(R.BASANT, JUDGE)** **(K.SURENDRA MOHAN, JUDGE)** rtr/