T.K. Bose v. District Superintendent of Police, Palakkad and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON MONDAY, THE 5TH DAY OF MARCH 2018 / 14TH PHALGUNA, 1939** **WP(C).No. 1402 of 2018** **------------------** ## **PETITIONER** - **----------** **T.K. BOSE, AGED 48 YEARS, S/O.T.V. KUNCHAPPAN, THORATH HOUSE, CHALISSERY P.O, PROPRIETRIX, M/S.MARIYA TRADERS, NEAR -GHS CHALISSERY, PALAKKAD DISTRICT -679 536.** **BY ADV.SRI.A.HAROON RASHEED.** ## **RESPONDENTS:** - **------------** **1. DISTRICT SUPERINTENDENT OF POLICE, PALAKKAD, PIN- 678 001.** **2. THE SUB INSPECTOR OF POLICE, CHALISSERY -679 536.** **3. THE DISTRICT LABOUR OFFICER, PALAKKAD- 678 001.** **4. THE SECRETARY,** **CENTRAL INDIAN TRADE UNION (C.I.T.U), CHALISSERY UNIT, P.O CHALISSERY, PIN-679 536, PALAKKAD DISTRICT.** **5. THE SECRETARY,** - **SWATHATHRA THOZHILALI UNION(S.T.U), CHALISSERY UNIT, P.O CHALISSERY, PIN -679 536, PALAKKAD DISTRICT.** **6. KERALA HEADLOAD WORKERS WELFARE BOARD, PALAKKAD DISTRICT COMMITTEE, PALAKKAD, REPRESENTED BY ITS CHAIRMAN, PIN- 678 001.** **7. THE DISTRICT SECRETARY,** - **KERALA HEADLOAD WORKERS WELFARE BOARD, PALAKKAD DISTRICT COMMITTEE, PALAKKAD, PIN-678 001.** **R1 TO R3 BY SR. GOVT. PLEADER SRI.P.P. THAJUDEEN. R4 & R5 BY ADV. SRI.P.JAYARAM R6 & R7 BY ADV. SRI.THOMAS ABRAHAM, SC.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-03-2018, ALONG WITH W.P.(C)NO.1854 OF 2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs. 06/03/2018.** **WP(C).No. 1402 of 2018 (A)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LICENSE ISSUED BY THE PANCHAYATH.** **EXHIBIT P2 THE TRUE COPY OF THE PETITIONERS REQUEST TO THE 2ND RESPONDENT DATED 08/01/2018.** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R4(A):- A TRUE COPY OF THE IDENTITY CARD NO.09/06/3432/97 RULE 26A OF KERALA HEADLOAD WORKERS ACT/RULES ISSUED TO LAKSHMANAN K.R BY ASSISTANT LABOUR OFFICER, SHORANUR. EXHIBIT R4(B):- A TRUE COPY OF THE IDENTITY CARD NO.09/06/602/89 RULE 26A OF KERALA HEADLOAD WORKERS ACT/RULES ISSUED TO N.V. KRISHNAN KUTTY BY ASSISTANT LABOUR OFFICER, SHORANUR. EXHIBIT R4(C) A TRUE COPY OF THE IDENTITY CARD NO.09/06/5284/2005 RULE 26A OF KERALA HEADLOAD WORKERS ACT/RULES ISSUED TO M. SULAIMAN BY ASSISTANT LABOUR OFFICER, SHORANUR EXHIBIT R4(D) A TRUE COPY OF THE IDENTITY CARD NO.09/06/3433/97 RULE 26A OF KERALA HEADLOAD WORKERS ACT/RULES ISSUED TO K. V.S. VAREED BY ASSISTANT LABOUR OFFICER, SHORANUR. EXHIBIT R4(E):- A TRUE COPY OF THE IDENTITY CARD NO.09/06/596/89 RULE 26A OF KERALA HEADLOAD WORKERS ACT/RULES ISSUED TO K.A. JANARDHANAN BY ASSISTANT LABOUR OFFICER, SHORANUR. EXHIBIT R4(F) A TRUE COPY OF THE IDENTITY CARD NO.09/06/594/89 RULE 26A OF KERALA HEADLOAD WORKERS ACT/RULES ISSUED TO P.A. MOHANAN BY ASSISTANT LABOUR OFFICER, SHORANUR. EXHIBIT R4(G):- A TRUE COPY OF THE IDENTITY CARD NO.09/06/5454/07 RULE 26A OF KERALA HEADLOAD WORKERS ACT/RULES ISSUED TO ABDULLAKUTTY K.V BY ASSISTANT LABOUR OFFICER, SHORANUR. EXHIBIT R4(H): A TRUE COPY OF THE IDENTITY CARD NO.09/06/5287/2005 RULE 26A OF KERALA HEADLOAD WORKERS ACT/RULES ISSUED TO ABDUL LATHEEF K.B BY ASSISTANT LABOUR OFFICER, SHORANUR. EXHIBIT R4(I):- A TRUE COPY OF THE IDENTITY CARD NO.09/06/256/90 RULE 26A OF KERALA HEADLOAD WORKERS ACT/RULES ISSUED TO P.K. HAMSAMON BY ASSISTANT LABOUR OFFICER, SHORANUR. EXHIBIT R4(J): A TRUE COPY OF THE IDENTITY CARD NO.09/06/5367/2006 - RULE 26A OF KERALA HEADLOAD WORKERS ACT/RULES ISSUED TO KAMARUDEEN BY ASSISTANT LABOUR OFFICER, SHORANUR EXHIBIT R4(K): A TRUE COPY OF THE IDENTITY CARD NO.09/06/250/90 RULE 26A OF KERALA HEADLOAD WORKERS ACT/RULES ISSUED TO P.M. BAVA BY ASSISTANT LABOUR OFFICER, SHORANUR.** **WP(C).No. 1402 of 2018 (A)** |**EXHIBIT R4(L)**|**A TRUE COPY OF THE IDENTITY CARD NO.09/06/3474/97 -**| |---|---| ||**RULE 26A OF KERALA HEADLOAD WORKERS ACT/RULES ISSUED**| ||**TO C.M. HAMEED BY ASSISTANT LABOUR OFFICER, SHORANUR**| |**EXHIBIT R4(M):-**|**A TRUE COPY OF THE IDENTITY CARD NO.09/06/2215/90**| ||**RULE 26A OF KERALA HEADLOAD WORKERS ACT/RULES ISSUED**| ||**TO A.B. ABDULLA BY ASSISTANT LABOUR OFFICER, SHORANUR**| |**EXHIBIT R4(N):**|**A TRUE COPY OF THE IDENTITY CARD NO.09/06/6067/14**| ||**RULE 26A OF KERALA HEADLOAD WORKERS ACT/RULES ISSUED**| ||**TO ABDUL SALIM BY ASSISTANT LABOUR OFFICER, SHORANUR.**| |**EXHIBIT R4(O):-**|**A TRUE COPY OF THE AGREEMENT DATED 15.11.2017 EXECUTED**| ||**AMONGST R4 AND R5 TRADE UNION WITH ORGANISATIONS OF**| ||**TRADERS AT CHALISSERY.**| ||**//TRUE COPY//**| ||**P.S. TO JUDGE**| **rs. 06/03/2018.** **K. VINOD CHANDRAN & ASHOK MENON, JJ ================================ W.P.(C) Nos.1402 of 2018 - A & 1854 of 2018 -F** **=======================** **Dated this the 05[th] day of March, 2018** ## **J U D G M E N T** ## K. Vinod Chandran, J The petitioners are aggrieved with the claim for loading and unloading work raised by the party respondents. The petitioners assert that the area is not scheme covered, under the provisions of the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 (for brevity 'the Scheme'). The petitioners submit that they have their own workmen to carry on the loading and unloading work in their establishments. The petitioner in W.P.(C) No.1402 of 2018 is carrying on the business of arecanut and the petitioner in W.P.(C) No.1854 of 2018 is carrying on timber business. W.P.(C) Nos.1402 of 2018 & 1854 of 2018 : 2 : 2. The learned Counsel for the respondent Unions submits that their members are persons, who have registered under Rule 26A of the Kerala Headload Workers Rules, 1981 (for brevity 'the Rules'). The learned Counsel would also specifically refer to Ext.R4(o), produced in W.P.(C) No.1402 of 2018, where certain associations in the locality have entered into an agreement with the Unions. The petitioners are obliged to comply with such agreement, and necessarily have to employ the workers of the Unions, who have registration under Rule 26A. A reference is also made to a decision of a Full Bench of this Court in **Raghavan** v. **Superintendent of Police [1998 (2) KLT 732]** to contend that even permanent workers in an establishment are to get registration under Rule 26A of the Rules. The last sentence in paragraph 18 is referred to:- “.............Therefore, all head load workers whether permanently employed in an establishment or not are to get registration under R.26A”. W.P.(C) Nos.1402 of 2018 & 1854 of 2018 : 3 : 3. We are first concerned with the contention raised, on the basis of the decision of the Full Bench of this Court in **Raghavan** (supra). We do not think that the contention can be sustained, especially looking at the entirety of the judgment. The paragraph referred to by the learned Counsel starts with:- “18. The above provisions would make it clear that the registration contemplated by the Scheme is not applicable to permanent head load workers employed in an establishment either directly by the employer or through a contractor.........” ## 4. We also refer to the operative portion of the judgment as available in paragraph 24, which is extracted hereunder:- “24. In the light of the above discussion, following principles can be deduced (1). The provisions under Chapter III of the Act are applicable to all headload workers coming within the definition of the term under the Act. (2) The definition would take in both permanent workers attached to an establishment as also workers W.P.(C) Nos.1402 of 2018 & 1854 of 2018 : 4 : engaged in the establishment from time to time. But, workers engaged for domestic purposes are excluded. (3) The provisions of the Act would be applicable only to those headload workers who are engaged in establishments coming under the Schedule Under S.2(j). (4) All headload workers including permanent workers attached to establishments are liable to get registered under R.26A. (5) In the areas where the Scheme is made applicable, no headload worker who is not a registered headload worker as per the Kerala Headload Workers Rule, shall be allowed or required to work in that area. It is also necessary that such headload worker shall get a registration under the provisions of the scheme. But, a headload worker who is permanently employed by an employer or a contractor is not liable to get registration under the scheme. (6) An employer is bound to maintain registers and records in respect of every headload worker employed by him as per the provisions contained under R.27 including supply of wage card to any headload worker. (7) It is open to the employer to engage his permanent headload workers attached to his establishment to do the loading and unloading work whether it is in an area where the Scheme is made applicable or not. (8) But, in an area where W.P.(C) Nos.1402 of 2018 & 1854 of 2018 : 5 : the Scheme is made applicable, if the employer requires additional workers, he has to get them through the committee formed under S.18 and in accordance with the provisions of the Scheme. In an area where the Scheme is not made applicable, there is no such obligation on the part of the employer and he can engage workers of his own choice. But he will be bound to comply with the provisions of R.27 in respect of such headload workers also. (9) If a headload worker permanently attached to an establishment is carrying on other work also, that, by itself, will not take him out of the definition of 'headload worker' under the Act. It will depend upon the nature of the principal engagement and that again has to be decided on the facts of each case”. 5. It is very clear from the operative portion itself that a permanent worker employed by a contractor or establishment need not get registration under Rule 26A of the Rules, if the area is not scheme covered. If the area is scheme covered, then necessarily, the registration has to be obtained under Rule 26A of the Rules. In a scheme covered area, the W.P.(C) Nos.1402 of 2018 & 1854 of 2018 : 6 : employer would have freedom to carry out the loading and unloading work by its own registered employees. They also need not be a member of the scheme as constituted under Scheme of 1993. 6. The next contention raised is with respect to the agreement. We see that an agreement has been entered into by certain associations and also the unions. The agreement does not indicate that all the members of the association will have to comply with such agreement. Only those members, who do not employ own workers, would have to comply with the rates as prescribed therein for employment of the general workers having registration under Rule 26A. There is no compulsion on the members of the associations to employ the party respondents as per the agreement. The petitioners though members of the Vyapari Vyavasayi Ekopana Samithi have their own workers, is the contention. We see that the area being not scheme covered, there can be no claim raised for the loading and unloading work from the petitioners W.P.(C) Nos.1402 of 2018 & 1854 of 2018 : 7 : herein. In such circumstances, if any obstruction is caused to the loading and unloading of the petitioners by the respondent Unions or their members, then police shall afford necessary protection to remove the obstruction. The writ petition would stand allowed. No costs. Sd/- **K. VINOD CHANDRAN, JUDGE** Sd/- **ASHOK MENON, JUDGE** SB/06/03/2018 // true copy // P.A to Judge