WPC 23280 of 2019

WPC 23280 of 2019 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941** ## **WP(C).No.23280 OF 2019(H)** ## **PETITIONERS:** - **1 C.MOHANAN AGED 45 YEARS S/O.CHELLAPPAN CHETTIYAR, THENGUVILA VEEDU, GANAPATHIYAMKOVIL, AZHOOR.P.O., CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT, PIN-695305** - **2 K.SURESH SUNITHA BHAVAN, INCHAYIL VEEDU, SHARKARA, CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT, PIN695304** - **3 SOMAN.R. CHARUVILAPUTHEN VEEDU, KOLICHIRA, AZHOOR.P.O., CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT, PIN695305** - **4 K.VIJAYAKUMAR PULIYARIKKAL VEEDU, AALTHARAMOODU, CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT, PIN-695304** - **5 ASOKAN.S VALIYIL VEEDU, MANJADIMUKKU CHIRAYINKEEZHU.P.O., THIRUVANANTHPAURAM DISTRICT, PIN-695304** **6 R.JAYACHANDRAN NAIR THATTARAZHKATTU VEEDU, KADAKAM.P.O., CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT, PIN695304** **BY ADVS. SRI.C.S.AJITH PRAKASH SRI.T.K.DEVARAJAN SMT.T.N.SREEKALA** WPC 23280 of 2019 2 ## **SRI.FRANKLIN ARACKAL KUM.NEETHU SOMAN SRI.M.B.SOORI** ## **RESPONDENTS:** - **1 THE DISTRICT POLICE CHIEF OFFICE OF THE DISTRICT POLICE CHIEF, THIRUVANANTHPAURAM DISTRICT, PIN-695305** - **2 DEPUTY SUPERINTENDENT OF POLICE OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, ATTINGAL, THIRUVANANTHAPURAM DISTRICT, PIN-695305** - **3 THE SHO OF POLICE CHIRAYINKEEZHU POLICE STATION, CHIRAYINKEEZHU.P.O., THIRUVANANTHPAURAM DISTRICT, PIN-695305** - **4 THE CHAIRMAN KERALA HEAD LOAD WORKERS WELFARE BOARD, THIRUVANANTHAPURAM DISTRICT COMMITTEE, KOUSTHUBHAM COMPLEX TC 43(C)/1189, CHALAI.P.O, CHENTHITTA, THIRUVANANTHPAURAM-695036** - **5 THE CONVENER KERALA HEAD LOAD WORKERS WELFARE BOARD, ATTINGAL SUB OFFICE ATTINGAL .P.O. THIRUVANANTHAPURAM DISTRICT-695101** - **6 THE DISTRICT LABOUR OFFICER, THIRUVANANTHAPURAM DISTRICT, THOZHILBHAVAN, VIKASBHAVAN.P.O., THIRUVANANTHAPURAM 695033** - **7 THE ASSISTNAT LABOUR OFFICER ATTINGAL OFFICE OF THE ASSISTANT LABOUR OFFICER, ATTINGAL, THIRUVANANTHAPURAM-695101** - **8 SUNILKUMAR, S/O.KARUNAKARAN, THAZHEVILAKAM, CHIRAYINKEEZHU.P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695304** WPC 23280 of 2019 3 **9 G.RAVI.S/O.GOPI, KALLUVILA VEEDU, CHIRAYINKEEZHU.P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695304** - **10 G.RAGHU** **S/O.GOPI, KALLUVIAL VEEDU, CHIRAYINKEEZHU.P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695304** **11 SUBASH S/O.RAJAN, KOYIKKALVILA, KOTTAPURAM, CHIRAYINKEEZHU.P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695304** **12 VIKRAMAN KOCHUVADAKKETHIL HOUSE, KOTTAPURAM, CHIRAYINKEEZHU.P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695304** **ADDL THE REGIONAL JOINT LABOUR COMMISSIONER, R13 KOLLAM. (IMPLEADED SUO MOTU AS PER ORDER DATED 23.10.2019)** **R4-5 BY SRI.THOMAS ABRAHAM, SC, KHWWB R8-12 BY ADV. SRI.PHILIP T.VARGHESE R8-12 BY ADV. SRI.THOMAS T.VARGHESE R8-12 BY ADV. SMT.ACHU SUBHA ABRAHAM R8-12 BY ADV. SMT.V.T.LITHA R8-12 BY ADV. SMT.K.R.MONISHA R8-12 BY ADV. SMT.SHRUTHI SARA JACOB SPL.GOVT.PLEADER SRI.P.P.THAJUDEEN (R1 TO R3, R6 & R7)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2910-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 23280 of 2019 4 ## **P.B.SURESH KUMAR, J.** ## **----------------------------------------------W.P.(C) No.23280 of 2019** ## **-----------------------------------------------** ## **Dated 29[th] October, 2019.** ## **J U D G M E N T** Petitioners are headload workers who have been granted registration under Paragraph 6A of the Kerala Headload Workers (Regulation of Employment and Welfare)Scheme, 1983 (the Scheme) and allotted by the Attingal Sub Committee under the Thiruvananthapuram District Committee of the Kerala Headload Workers Welfare Board (the Board) for carrying out the loading and unloading works in the establishments within the limits of Pool No.3 under that Sub Committee at a place called Sharkara to which the functional operation of the Scheme has been extended. A foreign liquor retail outlet (liquor outlet) of the State Beverages Corporation which was earlier functioning within the limits of another pool under the said Sub Committee has now been shifted to a new place. The case set out by the petitioners in the writ petition is that the liquor outlet is now functioning within the limits of Pool No.3; that the WPC 23280 of 2019 5 petitioners have, therefore, exclusive right to carry out the loading and unloading work in the outlet; that they are not permitted to carry out the loading and unloading work in the outlet by the headload workers in the locality and that despite repeated requests, the police officers concerned who are duty bound to extend police aid to the petitioners are not extending the same to the petitioners to carry out their work. Respondents 8 to 12 are stated to be the headload workers in the locality who are causing obstructions to the petitioners. The petitioners, therefore, seek appropriate directions to the police officers concerned to extend them police aid to carry out the loading and unloading work in the liquor outlet. 2. A statement has been filed by the Standing Counsel for the Board. The fact that the petitioners are headload workers allotted by the Attingal Sub Committee for carrying out the loading and unloading work in the establishments within the limits of Pool No.3 is admitted by the Board in the statement. The stand taken by the Board, however, is that the liquor outlet is situated at a place called Manchadimoodu. It is also stated by the Board that in view of the dispute, an interim arrangement has been made by permitting the workers engaged in loading and unloading work at Manchadimoodu to WPC 23280 of 2019 6 carry out the said work till the dispute is resolved finally. 3. Heard the learned counsel for the petitioners, the learned Standing Counsel for the Board as also the learned Government Pleader. 4. The learned Government Pleader, based on instructions from the District Labour Officer who is holding additional charge of the Chairman of the District Committee of the Board, submitted that the liquor outlet is not situated within the limits of Pool No.3 and that it is situated within the limits of Pool No.5 under the Attingal Sub Committee and the petitioners are, therefore, not entitled to carry out the work in the liquor outlet. It was also pointed out by the learned Government Pleader that though proceedings for conciliation have been initiated by the Assisstant Labour Officer concerned in the area, the matter could not be settled and he has, therefore, submitted a failure report. 5. The learned counsel for the Board submitted that at present, there are no workers under Pool No.5, as some of the workers allotted to that Pool have left the work and others have attained the age of superannuation. 6. The learned counsel for the petitioners, placing reliance WPC 23280 of 2019 7 on Paragraph 6 of the Scheme, contended that in so far as the liquor outlet is situated in an area to which the functional operation of the Scheme is extended, only those workers who have registration under the Scheme like the petitioners are entitled to carry out the work in the outlet. It was pointed out that they are entitled to be preferred over workers who have registration under Rule 26A of the Kerala Headload Workers Rules (the Rules). ## 7. Paragraph 6 of the Scheme reads thus : [6. Procedure for regulation of employment of headload worker on Scheme areas – (1) No headload worker, who is not a registered headload worker under the provision of the Kerlala Headload Workers Rules shall be 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. (2) 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 an area to which the Scheme applies unless he is granted a further registration under the provisions of this Scheme. A bare reading of the extracted Paragraph would indicate that the restrictions imposed in terms of the said provision in the matter of engaging headload workers would apply only from the date of commencement of the functional operation of the Scheme in that area. The functional operation of the Scheme can be said to commence in an WPC 23280 of 2019 8 area only when workers are allotted by the Committee to that area. As noted, it has come out that the workers who have been originally allotted to Pool No.5 under the Sub Committee have either left the work or superannuated. It cannot, therefore, be said that the functional operation of the Scheme extends now to the area covered by Pool No.5. If the functional operation of the Scheme is not extended to the area where the liquor outlet is situated, I do not think that there is any restriction on any employer in that area engaging a headload worker of his choice to carry out the loading and unloading work in his establishment. At any rate, an employer can certainly engage headload workers having registration under Rule 26A of the Rules for carrying out the work. It is all the more so since Paragraph 8 of the Scheme categorically provides that every headload worker, to whom registration has been granted by the committee under the Scheme, shall work only in the area as per the allotment made by the committee. In other words, if the liquor outlet is situated beyond the limits of Pool No.3, the petitioners cannot claim, as of right, work in that outlet. 8. The subsisting issue, however, is as to the location of the liquor outlet. Is it within the limits of Pool No.3 or Pool No.5? While the WPC 23280 of 2019 9 petitioners assert that the liquor outlet is within the limits of Pool No.3, the Chairman of the District Committee asserts that the liquor outlet is within the limits of Pool No.5. This question needs to be resolved. Going by the Scheme of the Kerala Headload Workers Act, 1978 (the Act), a dispute of this nature falls within the scope of Section 21 of the Act (See **Swathanthra Thozhilali Union v. Kerala Headload Workers Welfare Board and another** , 2011(3) KHC 556). As the Assistant Labour Officer having jurisdiction in the area has submitted a failure report after making an attempt to resolve the dispute through conciliation, the Conciliation Officer appointed in terms of the Act has to now commence the proceedings under sub section (2) of Section 21 of the Act for the purpose of bringing about a settlement of the dispute and if the said officer is not able to bring about a settlement, the matter has to be adjudicated in terms of sub section (4) of Section 21 of the Act. 9. It is seen that the conciliation officer under the Act is presently holding additional charge of the Chairman of the District Committee of the Board. In the circumstances, I am of the view that the powers of the conciliation officer can be exercised by the additional 13[th] respondent, the appellate authority over the decisions of the WPC 23280 of 2019 10 conciliation officer. 10. In the circumstances, the writ petition is disposed of directing additional 13[th] respondent to commence the proceedings under Section 21 of the Act and complete the same expeditiously in accordance with law. Needless to say that the loading and unloading work in the liquor outlet shall be carried out in accordance with the decision to be taken in the said proceedings. Having regard to the facts and circumstances of the case, it is also directed that until a final decision is arrived at in the said proceedings, the present arrangement made by the Board as indicated in paragraph 3 of the statement filed by them shall be continued. **Sd/-** **P.B.SURESH KUMAR, JUDGE.** tgs WPC 23280 of 2019 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE 6A IDENTITY CARD DATED 14.12.2013 ISSUED TO THE 1ST PETITIONER EXHIBIT P2 A TRUE COPY OF THE 6 A IDENTITY CARD DATED 10.07.2017 ISSUED TO THE 2ND PETITIONER EXHIBIT P3 A TRUE COPY OF THE 6A IDENTITY CAR DATED 10.07.2017 ISSUED TO THE 3RD PETITIONER EXHIBIT P4 A TRUE COPY OF THE 6 A IDENTITY CARD DATED 01.07.2001 ISSUED TOT HE 4TH PETITIONER EXHIBIT P5 A TRUE COPY OF THE 6 A IDENTITY CARD ISSUED TO THE 5TH PETITIONER EXHIBIT P6 A TRUE COPY OF THE 6A IDENTITY CARD DATED 07.03.2004 ISSUED TO THE 6TH PETITIONER EXHIBIT P7 A TRUE COPY OF JUDGMENT IN WP(C)NO.3522/2019 DATED 11.02.2019 EXHIBIT P8 A TRUE COPY OF THE REPRESENTATION DATED 24.08.2019 SUBMITTED TO THE 4TH AND 5TH RESPONDENT EXHIBIT P9 A TRUE COPY OF THE PETITION FOR POLICE PROTECTION DATED 24.08.2019 IS SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT POLICE OFFICER. EXHIBIT P10 A TRUE COPY OF THE RECEIPT ISSUED BY THE SHO OF CHIRAYINKIL POLICE STATION DATED 24.08.2019** **EXHIBIT P11 A TRUE COPY OF THE RECEIPT ISSUED BY THE OFFICE OF THE 2ND RESPONDENT ACKNOWLEDGING THE RECEIPT OF COMPLAINT DATED 24.08.2019** WPC 23280 of 2019 12 ## **EXHIBIT P12** **A TRUE COPY OF THE REPLY SUBMITTED BY THE PUBLIC INFORMATION OFFICER OF THE KERALA HEAD LOAD WORKERS WELFARE BOARD OF THE THIRUVANANTHAPURAM DISTRICT COMMITTEE DATED 17/09/2019.** **EXHIBIT P13 A TRUE COPY OF THE QUERY UNDER THE RTI ACT, SUBMITTED BY MR. BINU D TO THE ASSISTANT LABOUR OFFICER, DATED 16-08-2019.** **EXHIBIT P14 A TRUE COPY OF THE REPLY ISSUED TO MR. BINU D BY THE PUBLIC INFORMATION OFFICER OF THE ASSISTANT LABOUR OFFICER.** **RESPONDENTS EXHIBITS:** **EXHIBIT R8 TRUE COPY OF THE DECISION OF THE KERALA HEAD LOAD WORKERS WELFARE BOARD DATED 22.08.2019.** (TRUE COPY) SD/- P.S. TO JUDGE.