W.A. No. 930 of 2019 & W.P.(C) No. 11358 of 2019 (Kerala High Court)

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941** ## **WA.No.930 OF 2019** **WP(C) 17640/2018(D) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONERS IN WP(C)** - **1 JERIN.T.ALIAS, AGED 39 YEARS S/O. T.V ALIAS, POOL LEADER, POOL NO. 17 THERULIL HOUSE, PAINGARAPILLI P.O, THURUTIKKARA, MULANTHURUTHI, ERNAKULAM DISTRICT, PIN 682 314.** - **2 RASHEED K.M, POOL LEADER, POOL NO. 27 KUNNAPALLIMARIYIL KAROTE, MARITHAZHAM P.O, KANJIRAMATTOM, ERNAKULAM DISTRICT.** **BY ADVS. SRI.C.S.AJITH PRAKASH SRI.T.K.DEVARAJAN SMT.T.N.SREEKALA SRI.FRANKLIN ARACKAL SRI.PAUL C THOMAS SRI.A.T.JOSE SRI.M.B.SOORI** ## **RESPONDENTS/RESPONDENTS IN WP(C)** - **1 THE CHIEF EXECUTIVE OFFICER KERALA HEAD LOAD WORKERS WELFARE BOARD, S R M ROAD, ERNAKULAM, KOCHI 682 018** - **2 THE CHAIRMAN, KERALA HEAD LOAD WORKERS WELFARE BOARD, ERNAKULAM DISTRICT COMMITTEE, KUMMENCHERRY BUILDING, T.D ROAD, ERNAKULAM, KOCHI 682 035.** **3 THE CONVENER, MULANTHURUTHI SUB OFFICE, KEERALA HEAD LOAD WORKEERS WELFARE BOARD, 1ST FLOOR, SERVICE CO-OPERATIVE BANK NO. 23, PALLITHAZHAM, MULANTHURUTHI 682 314.** - **4 THE CONVENER,** WA.930/2019 & WP(C).11358/2019 2 **THRIPUNITHURA SUB COMMITTEE, WHITE SHOP BUILDING, KERALA HEAD LOAD WORKERS WELFARE BOARD, HILL PALACE ROAD, MARKET JUNCTION, THRIPUNITHURA 682 301.** - **5 C.P SAJU, S/O. PATHROSE, POOL LEADER, POOL NO. 18, CHURAKUZHI HOUSE, EDAKKATTUVAYAL P.O, ARAKKUNNAM.** **SRI.S.KRISHNA MOORTHY, SC, KHWWB R5 BY ADV. SRI.V.P.PRASAD** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2019, ALONG WITH WP(C).11358/2019(T), THE COURT ON 20-01-2020 DELIVERED THE FOLLOWING:** WA.930/2019 & WP(C).11358/2019 3 **“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941** **WP(C).No.11358 OF 2019(T)** ## **PETITIONERS** ## **1 JERIN T.ALIAS AGED 39 YEARS** **S/O. T. V. ALIAS, POOL LEADER, POOL NO. NO. 17. THERULIL HOUSE, PAINGARAPPILLI P.O, THURUTIKKARA, MULANTHURUTHI, ERNAKULAM DISTRICT, PIN - 682 314** - **2 RASHEED. K. M. POOL LEADER, POOL NO. 27, KUNNAPALLIMARIYIL KAROTE, MARITHAZHAM P.O, KANJIRAMATTOM, ERNAKULAM DISTRICT** **BY ADVS. SRI.C.S.AJITH PRAKASH SRI.T.K.DEVARAJAN SMT.T.N.SREEKALA SRI.PAUL C THOMAS SRI.A.TJOSE SRI.FRANKLIN ARACKAL SRI.M.B.SOORI** ## **RESPONDENTS** - **1 THE CHAIRMAN, KERALA HEAD LOAD WORKERS WELFARE BOARD ERNAKULAM DISTRICT COMMITTEE, KUMMENCHERRY BUILDING, T.D. ROAD, ERNAKULAM, KOCHI - 682 035** **2 THE CONVENOR MULANTHURUTHI SUB OFFICE, KERALA HEAD LOAD WORKERS WELFARE BOARD, 1ST FLOOR, SERVICE CO-OPERATIVE BANK NO. 23, PALLITHAZHAM, MULANTHURUTHI - 682 314** - **3 C. P. SAJU S/O. PATHROSE, POOL LEADER, POOL NO. 18, CHURAKUZHI HOUSE, EDAKKATTUVAYAL P.O, ARAKKUNNAM** **R1-2 BY SRI.S.KRISHNA MOORTHY, SC, KHWWB R3 BY ADV. SRI.V.P.PRASAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.12.2019, ALONG WITH WA.930/2019, THE COURT ON 20-01-2020 DELIVERED THE FOLLOWING:** WA.930/2019 & WP(C).11358/2019 4 ## **“CR”** ## **JUDGMENT** ## **Dated : 20[th] January, 2020** K.Vinod Chandran, J. 1.The essential question projected in the appeal is of means of livelihood, which can only be eked out if there is sufficient work available to the head load workers, who are the contesting parties. Three Pools of workers constituted under the Kerala Head Load Workers (Regulation of Employment and Welfare) Scheme, 1983 (for short “the Scheme”) have agitated the cause for a number of years without a final resolution. The judgment in appeal affirmed the order of the Ernakulam District Committee of the Kerala Head Load Workers Welfare Fund Board which was challenged as Ext.P37 in one of writ petition from which the appeal arise. The writ petition seeks registration of all the establishments employing head load workers under the WA.930/2019 & WP(C).11358/2019 5 Scheme, in the area allotted to Pool 18. The Pool numbers are respectively 17, 27 and 18. The realignment of the area of work, and that now conceded to Pool 18 is under challenge by the other two Pools. - 2.We have heard Sri.C.S.Ajith Prakash for the appellants, (Pool Leaders of Pool No.'s 17 & 27) Sri.V.P.Prasad for the contesting respondent (Pool Leader of Pool No.18) and Sri.S.Krishnamoorthy, the learned Standing Counsel for the Board. - 3.Sri.Ajith Prakash raised the following contentions against Ext.P37 order as also the impugned judgment. It is argued that the allotment of area is one which was in vogue for the last 30 years and there was absolutely no reason why realignment had to be carried out. It is contended that the area conceded to each of the Pools cannot be realigned by the District Committee since it is one decided by the District WA.930/2019 & WP(C).11358/2019 6 Labour Officer [DLO] under the Kerala Head Load Workers Rules, 1981 (for short “the Rules of 1981). The District Committee lacks jurisdiction to realign the area assigned to the Pools constituted under the Scheme, though the tussle between the head load workers or rather the workers of the pools comes under the definition of 'dispute' under Section 2(h) of the Kerala Head Load Workers Act, 1978 (for short “the Act”). It is not a dispute which could be resolved under Section 18 of the Act of 1978, is the argument and lies under Section 21; which exercise is now over as confirmed by the appellate authority and remains undisturbed in a challenge raised before this Court. 4.Reliance is placed on **Swathanthra Thozhilali Union v. Kerala Head Load Workers Welfare Board (2011 (3) KLT 527)** , a decision of a learned Single Judge of this Court, to argue that Section 18 cannot be invoked to alter the terms and conditions of the employment which 7 WA.930/2019 & WP(C).11358/2019 was in existence for several years. The dispute is one which has to be considered by the DLO as found in Ext.P8, affirmed by the Appellate Authority in Ext.P9. The said orders have been upheld by this Court in a writ petition and appeal and there could be no realignment carried out by the District Committee based on the invocation of powers under Section 18. 5.It is also contended that there is no genuine grievance for Pool 18 which consists of only 8 workers while Pool 17 is comprised of 53 workers and Pool 27 of 19 workers. There is no material placed on record to evidence the income generated in the area earlier assigned to Pool 18. In fact there are arrangements by which the members of Pool 18 were entrusted with work available in various establishments/employers in the area other than under the aegis of the Board. Pool 18, which has very minimal number of workers, has been assigned areas from those earlier assigned to Pool 17. WA.930/2019 & WP(C).11358/2019 8 The realignment seriously hampers the livelihood of the workers in Pool 17 and 27. It is submitted that the Pools being constituted on political lines, pressure was exerted by the ruling party to which is aligned Pool 18 and its workers. In fact, the Chairman of the Committee had taken a decision to which the appellants have no objection. There is also no complaint filed pursuant to Ext. P10 & 11 judgments. 6.Sri.V.P.Prasad appearing for the contesting respondents submits that in fact Pool 18 also had sufficient head load workers but many had left for reason of there being no sufficient employment in the area assigned to them. They had been consistently agitating the cause before the authorities and this Court. It is argued that the District Committee has powers to determine the area under the Scheme in which a head load worker is issued Para 6A card to work, while the area in which a person having identity card WA.930/2019 & WP(C).11358/2019 9 under Rule 26A of the Rules of 1981 is one determined by the DLO. The area in which a head load worker under Rule 26A can work and the area in which a head load worker issued with identify card under Para 6A of the Scheme can work are distinguishable. Once an area has been specified for a Pool to which Para 6A identity card holder belongs, the same can be altered only by the District Committee and not by the DLO. 7.Sri.S.Krishnamoorthy, the learned Standing Counsel for the Board strongly refutes the allegations of nepotism and political favoritism. It is pointed out that the Committee had been trying to resolve the issue amicably but no headway was reached for reason of the adamant stand taken by Pool 17 & 27. It is in accordance with the negotiations made at the District Committee Office and the enquiry conducted by the District Committee, the present realignment has been made. None of the parties can raise a dispute on the 10 WA.930/2019 & WP(C).11358/2019 realignment of the area within the Scheme area as made by the District Committee which power is definitely with the District Committee and not with the DLO. 8.As we noticed, the litigation has a long history; but we need not refer to all of it and start from Ext.P7 judgment which directed a conciliation under Section 21 of the Act. It is pursuant to failure of conciliation that Exts.P8 and P9 orders of the statutory authorities were passed; which are the orders under Section 21 asserted to be in force by the appellants. Ext.P8 was issued by the DLO on a complaint raised by Pool 18 alleging that the work available to them in the area assigned was insufficient to eke out a livelihood. Pools 17 and 27 were also heard. The DLO found in Ext.P8 that as per the Act and Rules, registration under Rule 26A is granted by the DLO enabling the head load worker to engage in head load work within a specified area. When WA.930/2019 & WP(C).11358/2019 11 a Scheme is implemented and the Welfare Fund Board or the Committee demarcates the area in which the Pools are constituted, it can only be within the area assigned to the worker in the original registration made by the DLO. There can be no realignment of area for reason of a particular Pool, or the area assigned to that Pool, having lesser availability of work. Though redeployment of head load workers could be made from one Pool to another by the District Committee, there is no jurisdiction with the District Committee or the authority granting registration under Para 6A of the Scheme to redefine the areas allotted to a Pool. We have our own reservations about the said finding of the DLO; as applicable to the facts of this case, which findings have been approved by the Appellate Authority as per Ext.P9. Before we express our opinion, we have to first look at the contention raised by the appellants that Exts.P8 and P9 stand upheld by this Court at two forums. WA.930/2019 & WP(C).11358/2019 12 9.Ext.P10 is the judgment of the learned Single Judge which considered the issue in a writ petition filed by Pool 18 against Exts.P8 and P9. The learned Single Judge noticed the grievance of the petitioner being of insufficient work available to the workers in Pool 18 who were 16 in number at that point of time; which has now been reduced to half; validating the contention that Pool 18 has no sufficient work. The learned Single Judge having gone through the impugned orders found that the dispute was one espoused under Section 21(4) of the Act, which cannot be raised as a dispute between two set of workers. The proper remedy was to move the authority as contemplated under Section 18 of the Act. Section 18(8)(b) of the Act was specifically referred to wherein it was possible to re-arrange and regulate the work including re-deployment and rearrangement of Pools. It was held that _“notwithstanding the impugned orders, if the_ WA.930/2019 & WP(C).11358/2019 13 _petitioner approaches the authority under the provisions of Section 18(8)(b), the issue shall be considered”(sic)_ . The Division Bench affirmed the judgment of the learned Single Judge and also observed that there was no relief granted to the petitioner. There was only a direction to approach the District Committee for appropriate relief. 10. In the judgment impugned here, the learned Single Judge specifically noticed the contention raised by the appellants with reference to **Swathanthra Thozhilali Union** (supra) and the divergent direction in Ext.P10, as affirmed in Ext.P11. **Swathanthra Thozhilali Union** (supra) was observed to be a binding precedent and Ext.P10 & 11 judgments were _sub silentio_ on the question of statutory source of the Committee's power. If **Swathanthra Thozhilali Union** is accepted as a precedent, then Ext.P10 judgment may not stand scrutiny since Section 18(8) was found to be not WA.930/2019 & WP(C).11358/2019 14 possible of invocation to alter the terms and conditions of the employment in vogue for several years. It was also held in **Swathanthra Thozhilali Union** that a dispute between two set of workers has to be ideally resolved under Section 21. However, the _inter parte_ decision at Ext.P11, of a Division Bench directed the Committee to decide on the dispute; which binds the parties to the _lis_ . The learned Single Judge rightly found that the misquoting of a provision would not denude the authority of the power conferred by the statute and the direction in Ext.P11 judgment is only to resolve the dispute in accordance with law. 11. To set right the controversy we need to make a threadbare examination of the provisions. The Act by Section 2(m) defines a Head load worker as a person employed directly or indirectly through a contractor in an establishment; with specific activities of loading and unloading, included and excluded. An WA.930/2019 & WP(C).11358/2019 15 establishment is defined in Section 2(j) as one specified in the Schedule. The definition of employer in Section 2(i) indicates three types of employment, under a Contractor [sub-clause (i)], under the Committee [sub-clause(ii)] and under the person who is in charge of an establishment [sub-clause(iii)]. The employer in cases of sub-clauses (i) and (iii), is the owner of the establishment or one who has ultimate control of the establishment. As far as sub-clause (ii) is concerned, the employer is the Committee appointed under Section 18. This has to be accepted, despite the Scheme having referred to establishments coming within the Scheme area as employer; the status being determined under the Statute itself. The Explanation further makes it clear that the head load worker for the purpose of sub-clause (ii) is a person registered under the Scheme and paid wages by the Committee; which has reference to the members of the Pool constituted under the Scheme by the Committee. WA.930/2019 & WP(C).11358/2019 16 The Committee constituted under Section 18 of the Act, as per Para 13 of the Scheme is entrusted the administration of the Scheme, when brought into force. The 'Regulation of Employment of Registered Head Load Workers' in a scheme area, as seen from Chapter VI of the Scheme is squarely with the Committee. 12. The Act by Section 13 confers on the Government, power to provide one or more Schemes for any employment or group of employments in one or more areas, by a notification in the Gazette. Similarly by a notification it confers power to constitute a Board (Section 14) and a Committee (Section 18) for a revenue district and as many Special Committees for specified areas; all of which bodies would implement the Act and have the powers, duties and functions as conferred by the Act, Rules and the Scheme. The Committee constituted for implementation of the Scheme, whose Convener is the registering authority 17 WA.930/2019 & WP(C).11358/2019 under Para 6A of the Scheme is undoubtedly the employer of the head load workers who are issued with identity cards under Para 6A of the Scheme. It is the Committee, in implementation of the Scheme, supplies head load workers to establishments within the area of the Scheme. The wages for the work carried out, is ideally deposited to the Committee, as per Para 21 to 24 of the Scheme, with disbursal of wages made by the Committee to the individual worker. Viewed in this angle we cannot approve of the judgment in **Swathanthra Thozhilali Union** which held that, resolution of dispute between two sets of workers regarding their entitlement to work, or conditions of employment can only be resolved under Section 21 of the Act of 1978; in exclusion of the Committee. 13. In **Swathanthra Thozhilali Union** the dispute was with respect to the days in a week allotted for two Pools operating in the same Scheme area. It was found WA.930/2019 & WP(C).11358/2019 18 that the Committee cannot interfere with the work arrangement in a scheme covered area, which was in vogue for a number of years. That would amount to rendering the Committee a mute spectator, which body has the role of an employer with reference to the pool members. Further there could be various factors warranting a change in the working arrangements, by passage of time, that would require the employers intervention in arranging the work equitably with respect to the multiple pools working in a Scheme area. It is the employer who has to arrange the work at the first instance and if there is any dispute with respect to the arrangement made, only then the dispute resolution measure of conciliation as provided under Section 21 of the Act has application. The dispute for conciliation, essentially is one arising between the employer and the employee or the employees and employees or between employers; all with reference to the terms and conditions of employment with possibly WA.930/2019 & WP(C).11358/2019 19 one representative faction of the employees supporting the employer; as is often the case under The Industrial Disputes Act. 14. The power of the employer to rearrange the work cannot be taken away and that is precisely provided under Section 18(8). If there is any dispute on such rearrangement then resort can be had to the procedure under Section 21. Whereas under the ID Act on failure of Conciliation there is a report made to the Government who may or may not refer it to a Court or Tribunal constituted under that Act; here the Conciliation Officer, on failure, takes a decision and transmits it to the Appellate Authority. In fact there is a two tier procedure for conciliation as provided in Section 21, first by the ALO and then by the Conciliation Officer; who is an officer not below the rank of a Deputy Labour Officer notified by the Government under Section 3, to whom a failure report WA.930/2019 & WP(C).11358/2019 20 is send by the ALO. When before the DLO also, the parties fail to reach a settlement, the DLO is empowered to take a decision in resolution of the dispute, which has to be forwarded to the Appellate Authority. What is binding on the parties is the decision of the Appellate Authority, who is one notified under Section 4. Under the ID Act, if no reference is made, then the remedy lies before this Court and so is the remedy, against a dispute resolution carried out by a Labour Court or Industrial Tribunal. Similar is the case with the decision of the Appellate Authority under the Head Load Workers Act; which can be challenged under Article 226. 15. The question then arising would be as to whether there could be a realignment of area assigned to each of the Pools constituted under the Scheme; if there are more than one. Section 18(8)(b) specifically confers power on the Committee _“to arrange and_ WA.930/2019 & WP(C).11358/2019 21 _regulate employment of such head load workers and to pay them wages”_ . In this context we now take up the reservation expressed as to the findings of the DLO in Ext.P8 with reference to the Act, the Rules and the Scheme. Rule 26A speaks of registration of head load workers for which application has to be made by a head load worker to the Registering Authority [Rule 2(e)], the Assistant Labour Officer [ALO] in Form No.IX. The ALO then issues notice to the employers from whom the head load worker get wages and in areas where the Scheme is implemented, to the Chairman of the local Committee appointed by the Board. Any person working as a head load worker in any of the three employments; under a Contractor or directly under an establishment or in a Pool within the Scheme area, under a Committee, has to register himself as a head load worker under Rule 26A; which establishes his identity as a head load worker and entitles him to carry out loading and unloading work in the area of his WA.930/2019 & WP(C).11358/2019 22 operation, whether there is a Scheme notified for the area or not. Pertinent is the fact the Act or the Rule does not prohibit the loading and unloading work to be carried out even by an unregistered worker in areas not covered by a Scheme. However as we shall presently notice, in a Scheme covered area, the position is different. The issuance of Rule 26A identity card under the Rules, does not also enable a head load worker to seek loading and unloading in the area as a matter of right. Such a right arises only when the Scheme is extended to the area where the members are issued with Para 6A identity cards under the Scheme, in Form C. It is also pertinent that only a person with Rule 26A card can validly seek for registration under Para 6A of the Scheme. 16. We now look at the sustainability of the finding of the DLO as to realignment of area not being possible by the Welfare Fund Board or the local WA.930/2019 & WP(C).11358/2019 23 Committees. The identity card issued under Rule 26A of the Rules is in Form No.XI. Item No.7 in the identity card refers to 'area where the worker normally works'. The identity card under Para 6A of the Scheme is issued under Form-C which also speaks of the 'area of work' at serial No.6 of the form. The area under Form No.XI and Form-C is not the same though the area under Form-C would be part of that coming within Form XI. 17. In this context we have to notice that even before the implementation of the Scheme, a head load worker interested in getting the benefits of the Act and Rules could make an application for registration as a head load worker which is granted under Rule 26A of the Rules of 1981. When a Scheme is implemented to the area in which a head load worker has been issued with Rule 26A cards, he has to necessarily apply for registration under the Scheme as per Para 6A. Only a person registered under the provisions of the Rules WA.930/2019 & WP(C).11358/2019 24 can submit an application in Form-A to the Convener of the Committee concerned, for registration under the Scheme. Considering the nature and quantity of work available as also the expanse of the area prescribed in Form No.XI one or more Pools are constituted. If only one pool is constituted then the area in the identity cards issued under the Act and the Scheme would be the same. If more than one pool is constituted then the area available in Form-C would be less than that of Form XI. The area in Form-C (under Para 6A) can never be in excess of that in Form XI (under Rule 26A). 18. When the Scheme is implemented for a vast area comprising of localities within the jurisdiction of various local bodies, but within one local Committee, then necessarily there would be more than one Pool constituted by the Committee. Though the right to carry on work in a particular area is determined by WA.930/2019 & WP(C).11358/2019 25 that demarcated in the identity card under Form XI of the Rules on implementation of the Scheme, it is for the Committee to decide the area in which the various Pools constituted are allowed to work; within the larger area of that specified in the Rule 26A identity cards. As we noticed Para 13 empowers the Committee to administer the Scheme and Para 18 & 19 is the power to determine the number of workers for an area and their division into Pools. Hence it cannot be said that the Committee has no jurisdiction to determine the area in which the various Pools constituted for a particular location are to work. 19. When a head load worker registered for an area under the Rules and issued with Rule 26A cards applies for registration under the Scheme, a separate identity card is issued under Para 6 of the Scheme in Form C. This identity card stipulates the area within the Scheme where the head load worker belonging to a Pool WA.930/2019 & WP(C).11358/2019 26 is allowed to work. The Committee definitely cannot assign an area of work to a head load worker registered under Para 6A, which is outside the area assigned by the DLO under Rule 26A. However, within the larger area for which registration is carried out under the Rules, it is for the Committee to make necessary adjustments considering the availability of the number of workers available in the Pools. Even if the Para 6 A cards issued to the members in the different pools is that shown under Section 26A; then on specific demarcation of area,in which each of the Pools operate, as carried out by the Committee then the Pool members are not entitled to claim work in any other area. This usually happens when initially there is only one pool for a local area and the numbers increase by reason of the increasing employment and the resultant registration under the Scheme; which is the case here as we will presently notice. WA.930/2019 & WP(C).11358/2019 27 20. The pools concerned with the dispute herein are all registered under the Mulanthuruthy Sub-Office of the Board falling within the jurisdiction of the local Committee for Thripunithura, working in the Mulanthuruthy-Ararakkunam area. The history recorded in Ext.P8, as narrated by the Pool Leader of Pool 17 itself is that when the scheme was first implemented on 01.12.1997 in the area, Pool 17 alone was constituted with 58 members and after 8 months, Pool 18 was constituted with 18 employees. Hence obviously the Rule 26A card holders for an area were constituted into two pools with Para 6A cards. Pool 27 came later in the year 1999, again comprised of members with 26A cards for the locality; obviously for reason of the increase in work available. The disputes are stated to have commenced in 2008, after 10 years and the cause discernible from the records as also lamented by the learned Single Judge was for reason of the Pools being constituted not on practical considerations of WA.930/2019 & WP(C).11358/2019 28 equitable distribution of work; but on political lines. 21. Whatever the justification of proper co-ordination possible, only if the Pools are constituted on political lines, it is not one sanctioned under the Act. This very same Division Bench, noticing the mounting litigation between the employees under the Scheme in **Makkar C.M.and Others v. State of Kerala and Others (2019 (4) KHC 1 [DB])** observed so: “While considering the issues involved in these writ petitions, we were reminded of the initial clarion call of the workers movement across the world, which exhorted the workers to unite and not otherwise. However the Unions too canvas divisive forces on grounds of increased membership and not out of concern for the community WA.930/2019 & WP(C).11358/2019 29 of workers. Any worker refusing to cooperate shall be proceeded against and the pool members shall act strictly in accordance with the directions of the Board”. Finding that “the pooling of head load workers on political basis is the only reason for the disputes”, an equitable distribution of work was made by directing creation of three Pools of equal strength from the different workers available without considering the political and party affiliations of the head load workers. It was also directed that if any worker refuses to work or obstructs the work of willing workers, appropriate disciplinary action under Para 26A shall be initiated. 22. We are faced with almost identical situation here where the Pools were constituted on political lines. WA.930/2019 & WP(C).11358/2019 30 Pool No.17 comprising of INTUC workers, Pool No.18 of CITU workers and Pool No.27 of BMS workers. As we held, the Pool has been constituted in the local area in which the Pool members have obtained Para 26A identity cards. The pool workers are the employees of the Committee constituted for their area. The employer at the first instance has the authority to carry out the work arrangement and decide the area of work assigned to each pools; which is the exercise carried out by the impugned order. Going by our findings herein above, there could be a dispute raised before the ALO, which on failure to be settled, has to be referred to the DLO, whose decision again has to be affirmed by the Appellate Authority. Then again a challenge could lie before this Court under Article 226 of the Constitution of India. Noticing the long pendency of the dispute as also the various contentions having been thrashed out before the District Committee, we are of the opinion that this is WA.930/2019 & WP(C).11358/2019 31 an apt case where we ourselves could make suitable equitable arrangements, as was done in the earlier cited case. We do not think Ext. P8 and P9 are sustained by Ext.P10 and P11 judgments. Though no interference was caused, the Committee was directed to look into the grievances. We have found that this is the correct procedure as per the Act, Rules and the Scheme. 23. We do not think that the Committee has acted without any complaint, as alleged by the appellants. The specific direction in Ext.P11 was to the Committee to look into the complaints and even an oral complaint from Pool No.18 would suffice. In this case, as pointed out by the learned counsel, a written complaint itself was made as is seen from Ext.P59. The District Committee had heard all the persons before the finding was rendered. There is no substance in the contention that Pool 18 has not submitted their income WA.930/2019 & WP(C).11358/2019 32 details. It is under the aegis of the Committee, the employer, that the head load work is carried out by the Pool members and the Committee would have the details of the establishments in the area to which the Pool workers are deputed. We also do not think that the allegations of political influence can be sustained since it is a mere assertion made without any substantiation. None have been impleaded in the personal capacity, alleging exertion of influence or having subjected themselves to such influence. In the context of the findings we sustain the impugned order insofar as the demarcation made with respect to the area being conceded to three different Pools. However, we deem it fit, in the nature of the controversies raised, to make some equitable distribution of work. 24. In finding a solution to the long pending disputes for equitable distribution of work, we are persuaded by the conduct of Pool No.18 members who were amenable WA.930/2019 & WP(C).11358/2019 33 to all suggestions put forward by us while Pool Nos.17 and 27 took an adamant stand that the distribution of area as carried out by the Chairman was adequate. We also required the learned Standing Counsel for the Board to make consultations with the Committee on the basis of our suggestions which have been agreed upon by the Committee. In such circumstances, we direct the following : (i) The three areas demarcated and as modified in the impugned order shall remain so demarcated until any change in the circumstances occurs. The areas shall be assigned Alphabets 'A', 'B' and 'C'. (ii) The Pools constituted on political lines shall be invalid and there shall be three Pools assigned to the area as Pool Nos.17, 18 and 27. WA.930/2019 & WP(C).11358/2019 34 (iii) From the 80 members now available in the three Pools, the Committee or an authorized officer, in the presence of the Pool members, shall by lots assign members to Pool Nos.17, 18 and 27. The Committee shall also assign a distinct uniform not of the political colour, to each of the Pools. (iv) From out of the Pools, again by lots, a Pool leader shall be selected who shall be answerable to the Committee and can be changed at the discretion of the Committee, if any complaints arise. - (v) Each of the Pools shall be assigned one of the areas for two months and every two months the same shall be rotated 35 WA.930/2019 & WP(C).11358/2019 between the Pools. At the first instance Pool No.17 shall be assigned area 'A', Pool No.18 assigned area 'B' and Pool No.27 assigned area 'C'. In the next two months, Pool No.17 shall be moved to area 'B', Pool No.18 to area 'C' and Pool No.27 to area 'A'. This rotation shall be continued in an year and the sequence changed in the next year so as to ensure that the very same months are not allotted to the pools in every year. (vi) We also direct the establishments/employers in the different areas to be registered under the Act and Scheme so as to ensure strict compliance of Chapter VI of the Scheme. (vii) If any worker refuses to work or WA.930/2019 & WP(C).11358/2019 36 obstructs the work of willing workers, appropriate disciplinary action under Para 26A shall be initiated. 25. We directed distinct uniforms to be prescribed for each pool only to ensure that the members of the pool are identifiable and work in unity and not because we are averse to see the blue, red and saffron shirts working together; the ideal situation of workers of all hues uniting to carry the nation forward. The Writ Appeal would, hence, stand rejected with the aforesaid directions. Writ petition would stand disposed of. Parties shall suffer their respective costs. Sd/- **K.VINOD CHANDRAN Judge** **Sd/-** **V.G.ARUN Judge** Mrcs/17.1. 37 WA.930/2019 & WP(C).11358/2019 1. In paragraph 19 at page 26 of the judgment dated 20.01.2020 in W.A.No.930/2019 and W.P.(C).No.11358/2019, the words and figures shown as “ **Section 26A** ” shall be corrected as “ **Rule 26A** ” as per order dated 28.01.2020 in W.A.930/2019 and W.P.(C).No.11358/2019. 2. In paragraph 21 at page 29, paragraph 22 at page 30 and paragraph 24 at page 36 the words and figures shown as “ **Para 26A** ” shall be corrected “ **Rule 26A** ” as per order dated 28.01.2020 in W.A.No.930/2019 and W.P.(C).No.11358/2019. WA.930/2019 & WP(C).11358/2019 38 ## **APPENDIX OF WP(C) 11358/2019** ## **EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE JUDGMENT IN W.A. NO.645/17 DATED 03.04.2017** **EXHIBIT P2 A TRUE COPY OF THE PROCEEDINGS OF THE CHAIRMAN OF THE DISTRICT COMMITTEE NO. E2 5014/17 DATED 25.05.2018** |**EXHIBIT P3**|**A TRUE COPY OF THE QUERY UNDER THE RIGHT TO**| |---|---| ||**INFORMATION ACT DATED 16.02.2018**| |**EXHIBIT P4**|**A TRUE COPY OF THE REPLY RECEIVED FROM THE 2ND**| |---|---| ||**RESPONDENT BOARD DATED 14.03.2018**| |**EXHIBIT P5**|**A TRUE PHOTOGRAPH OF A LOADING UNLOADING**| ||**ACTIVITY IN THE MILK SOCIETY (APCOS) NO. 154 D**| |**EXHIBIT P6**|**A TRUE COPY OF THE LEDGER ACCOUNT OF THE**| ||**KRISHNA TRADERS FOR THE PERIOD FROM 01.04.2016**| ||**TO 15.02.2017**| |**EXHIBIT P7**|**A TRUE COPY OF THE TRADING, PROFIT AND LOSS**| ||**ACCOUNT OF M/S. PF TRADERS WORKING IN POOL**| ||**AREA OF POOL NO.18**| |**EXHIBIT P8**|**A TRUE COPY OF THE INVOICE OF ANOTHER AGENCY**| ||**NAMELY ALBINO LIVE STOCK AND POULTRY AGENCY**| ||**DEALING WITH SKM ANIMAL FEEDS**| |**EXHIBIT P9**|**A TRUE COPY OF THE TAX INVOICE AND BILL ISSUED**| ||**TO THE 1ST PETITIONER BY ANJALI GLASS HOUSE**| ||**DATED 11.03.2016**| |**EXHIBIT P10**|**A TRUE COPY OF THE BILL ISSUED TO THE 1ST**| |---|---| ||**PETITIONER OF THE FIRM NAMELY 'NEW INDIAN**| ||**TRADERS' DEALING WITH MYCEN CEMENTS**| |**EXHIBIT P11**|**A TRUE COPY OF THE BILL DATED 11.06.2018**| ||**ISSUED BY THE 'KATTAPADA RUBBER PRODUCERS' TO**| ||**THE PETITIONERS**| |**EXHIBIT P12**|**A TRUE COPY OF THE BILL OF SUPPLY ISSUED BY**| WA.930/2019 & WP(C).11358/2019 39 **ST. GEORGE BRICK INDUSTRIES' ARAKKUNNAM TO THE PETITIONER DATED 11.06.2018** **EXHIBIT P13 A TRUE COPY OF THE PURCHASE BILL DATED 10.06.2018, ISSUED BY THE 'KERALA STATE COOPERATIVE RUBBER MARKETING FEDERATION' ARAKKUNNAM BRANCH TO THE PETITIONER** **EXHIBIT P14 A TRUE COPY OF THE BILL OF SUPPLY ISSUED TO THE 1ST PETITIONER BY THE KANDANCHIRAYIL AGENCIES DATED 11.06.2018** - **EXHIBIT P15 A TRUE COPY OF THE BILL DATED 08.02.2016 OF 'CHITTETH ENTERPRISES', ARAKUNNAM DEALING WITH CEMENT** - **EXHIBIT P16 A TRUE COPY OF THE BILL DATED 09.06.2018, ISSUED TO ONE K.A. THOMAS BY SEETHAKUNNEL AGENCIES, ARAKUNNAM DEALING WITH CEMENT** - **EXHIBIT P17 A TRUE COPY OF THE LETTER DATED 11.06.2018 SUBMITTED BY THE 1ST PETITIONER TO THE 1ST RESPONDENT BOARD** - **EXHIBIT P18 A TRUE COPY OF THE INTERIM ORDER DATED 01.04.2019 IN W.A. NO. 930/2019** **EXHIBIT P19 A TRUE COPY OF THE PHOTOGRAPH OF THE LOADING ACTIVITY IN SKM ANIMAL FEEDS AND FOODS LOCATED IN THE AREA OF POOL NO.18.** - **EXHIBIT P20 A TRUE COPY OF THE TAX INVOICE ISSUED BY BROTHERS TRADING TO MR.VINU THOMAS.** TRUE COPY