High Court of KeralaSingle Judge2016-08-11Dismissed

W.P.(C) No. 7118 of 2009 (H)

Case / Petition Number:WP(C).No. 7118 of 2009 (H)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2016-08-11
Court Decision / Holding: The petition is devoid of merit; the writ petition is dismissed. No costs.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

P.T. Rajan
E. Ummarkoya

Respondents

District Labour Officer, Civil Station, Kozhikode
Assistant Labour Officer, Feroke, Kozhikode
M. Veerankutty, M.V. House, Thottungal, Ramanattukara, Kozhikode
The Kerala Head Load Workers Welfare Board, represented by its Chairman, V.K.Building Cherooty Rd, Kozhikode
Addl.R5 impleaded as Union of India, represented by its Secretary, Ministry of Labour & Employment, Shram Shakti Bhavan, New Delhi - 110 001

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Nirmal. S

Counsels for Respondents

• Sri. R. Ramadas
• Sri. S. Saigy Joseph Palatt y
• Sri. Koshi George
• Sri. Joy George
• Sri. N. Nagareesh

Case Synopsis & Summary

The petitioners, two secretaries of headload workers’ unions, challenge Ext.P8, an order of the District Labour Officer registering nine workers under Rule 26A of the Kerala Headload Workers Rules, 1981, for loading/unloading activities at the 3rd respondent’s establishment. They contend the Nepalese nationals should be governed by the Inter-State Migrant Workmen Act, 1979, and that registration was done without hearing the Headload Workers’ Welfare Board. They point to two appeals (Exts. P7 and P8) with remand directions and argue that the 3rd respondent registered workers at a construction site, implying there is no real establishment. They rely on Section 13(3) of the Headload Workers Act, 1978, suggesting government reference is required for applying a scheme to a class of headload workers. The petition also invokes the Treaty of Peace and Friendship (1950) to assert Nepalese citizens’ free entry. The Respondents defend the registration under Rule 26A, note that the Board heard the matter, and highlight that the 3rd respondent has attached workers performing loading/unloading work. The court refers to precedents (Majeed M. v. DLO, Palakkad; Muhammed Shafeek; Alfred Thomas) to endorse the principle that a private establishment may entrust such tasks to attached workers. Ultimately, after seven years of proceedings, the court dismisses the petition, holding the challenge devoid of merit and ordering no costs.

Provisions of Law Cited

Rule 26A of the Kerala Headload Workers Rules, 1981Headload Workers Act, 1978 (especially Section 13(3))Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979Treaty of Peace and Friendship dated 31 July 1950

Legal Doctrines & Maxims

Right of an individual establishment to entrust loading and unloading work to their attached workers.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that the Nepalese workers registered by the 3rd respondent were not properly heard by the Headload Workers’ Welfare Board and that their registration under Rule 26A of the Kerala Headload Workers Rules, 1981 was improper since the Inter-State Migrant Workmen Act, 1979 should apply to such workers. They contested the site registration as at a construction site, implying absence of a true establishment, and invoked Section 13(3) of the Headload Workers Act, 1978, seeking government reference before applying any scheme; they also invoked the Nepalese treaty to limit applicability.

Contentions of Respondents

The respondents contended that nine workers were validly registered under Rule 26A after due hearing by the Kerala Headload Workers Welfare Board; they argued the workers were engaged in loading/unloading work at the 3rd respondent’s establishment and that the Inter-State Migrant Workmen Act, 1979 does not apply to direct employment in Kerala; they asserted that the construction-site registration was for genuine business purposes and that the matter had already been adjudicated by authorities, including remand directions that were appropriately followed.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Majeed M. v. District Labour Officer, Palakkad and Others	2015 KHC 2400	Positive	Cited to support the proposition that a private establishment may entrust loading/unloading work to attached workers.
Muhammed Shafeek and Others v. District Labour Officer, Palakkad and Others	2015 (1) KHC 550	Positive	Cited to reinforce the principle supporting entrusted loading/unloading work by attached workers.
Alfred Thomas v. State of Kerala and Others	2015 (5) KHC 275	Positive	Cited as authority in favor of the doctrine enabling establishment-based loading/unloading arrangements.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 11TH DAY OF AUGUST 2016/20TH SRAVANA, 1938** **WP(C).No. 7118 of 2009 (H) ---------------------------** **PETITIONERS:** - **-------------** **1. P.T.RAJAN, S/O.PERAVAN, AGED 65, SECRETARY, KOZHIKODE DISTRICT HEAD LOAD WORKER'S UNION C.I.T.U, ANNIE HALL ROAD, KOZHIKODE.** **2. E.UMMARKOYA, SECRETARY, HEADLOAD AND GENERAL WORKERS UNION, S.T.U. RAMANATTUKARA, KOZHIKODE.** **BY ADV. SRI.NIRMAL. S** **RESPONDENTS:** - **------------** **1. THE DISTRICT LABOUR OFFICER, CIVIL STATION, KOZHIKODE.** **2. THE ASSISTANT LABOUR OFFICER,FEROKE, KOZHIKODE.** **3. M.VEERANKUTTY, M.V.HOUSE, THOTTUNGAL, RAMANATTUKARA, KOZHIKODE.** **4. THE KERALA HEAD LOAD WORKERS WELFARE** - **BOARD, REP. BY CHAIRMAN, V.K.BUILDING CHEROOTY RD, KOZHIKODE.** **ADDL.R5 IMPLEADED** **ADDL.R5 UNION OF INDIA, REPRESENTED BY ITS SECRETARY MINISTRY OF LABOUR & EMPLOYMENT, SHRAM SHAKTI BHAVAN RAFI MARG, NEW DELHI - 110 001.** **ADDL.R5 IMPLEADED AS PER ORDER DATED 11.8.2016 IN I.A. NO.14155/2014** **R3 BY ADV. SRI.R.RAMADAS R1 & R2 BY SR. GOVERNMENT PLEADER SRI.SAIGY JOSEPH PALATTY R4 BY ADV. SRI.KOSHY GEORGE R4 BY ADV. SRI.JOY GEORGE, SC, KHWWB RADDL.R5 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 7118 of 2009 (H)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1: TRUE COPY OF REGISTRATION CERTIFICATE DATED 1.6.2007 ISSUED BY THE THIRD RESPONDENT** - **P2: TRUE COPY OF ORDER NO.HLW 4732 TO 47440/08 DATED 15.2.2008** - **P3: TRUE COPY OF APPEAL FILED BY THE 1ST PETITIONER DATED 7.3.2008** - **P4: TRUE COPY OF JUDGMENT IN W.P.(C) 6779/2008 DATED 18.8.2008** - **P5: TRUE COPY OF ORDER DATED 4.4.2008 ISSUED BY THE 2ND RESPONDENT** - **P6: TRUE COPY OF APPEAL DATED 7.4.2008 ISSUED BY THE PETITIONERS** - **P7: TRUE COPY OF ORDER NO.IR(1)2096/08 DATED 8.7.2008 ISSUED BY THE 2ND RESPONDENT** - **P8: TRUE COPY OF ORDER DATED 14.10.2008 ISSUED BY THE PETITIONER** - **P9: TRUE COPY OF ORDER DATED 25.11.2008 ISSUED BY THE 1ST RESPONDENT** ## **//TRUE COPY//** **P.A.TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 7118 of 2009 (H) -----------------------------------------Dated: 11[th] August, 2016 ## **J U D G M E N T** The petitioners, the Secretaries of two Headload Workers' Unions, are aggrieved by Ext.P8 order passed by the District Labour Officer. The petitioners, by the writ petition, challenge the order and claim loading and unloading work to the pool members in the notified area, under which the 3[rd] respondent is carrying on his business. The 3[rd] respondent, however, has registered nine workers, one certificate of which is produced as Ext.P1; which registration is under Rule 26A of the Kerala Headload Workers Rules, 1981 ('Rules of 1981' for short). 2. The petitioners' contentions are many fold; one, that the nine workers, being citizens of Nepal, ## **W.P.(C) No. 7118/2009** **-2-** have to be registered under the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 ('Act of 1979' for short). The further contention is that registrations were made without hearing the Board. There is also an argument that two appeals filed by the respective petitioners before the District Labour Officer were disposed of by two separate orders at Exts.P7 and P8. The contention is that one appeal was considered in Ext.P7 and a remand was ordered directing the Assistant Labour Officer to pass fresh orders after hearing the Headload Workers' Welfare Board. Subsequently, when the other appeal came up for hearing, the District Labour Officer decided Ext.P8, while the remanded proceeding was pending before the Assistant Labour Officer. Yet another contention is taken that the 3[rd] respondent registered the workers in a construction site and there ## **W.P.(C) No. 7118/2009** **-3-** is no establishment as such going on. The learned Counsel for the petitioners also argue, relying on sub section (3) of Section 13 of the Headload Workers Act, 1978, ('Act of 1978' for short) that if any question arises as to the application of a scheme to any class of headload workers, the matter shall be referred to the Government. The said contention is raised on the ground that the 3[rd] respondent had merely registered the workers for a construction site. 3. The contention with respect to sub section (3) of Section 13 of the Act of 1978 and the 3[rd] respondent having registered the workers for a construction site is interlinked and can be considered together. The specific argument of the learned Counsel for the 3[rd] respondent is that the construction was intended for starting a business in the constructed building. It is also submitted that a three floor commercial building was ## **W.P.(C) No. 7118/2009** **-4-** constructed in the site and a business was started, which establishment is being carried on even now. In such circumstance,the contention based on Section 13 (3) of the Act of 1978, need not be considered as of now. 4. The contention based on Act of 1979 can be answered by citing the definition of 'inter-State migrant workman' available in Section 2(e), which is as hereunder: “(e) “inter-State migrant workman' means any person who is recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State, whether with or without the knowledge of the principal employer in relation to such establishment;” ## **W.P.(C) No. 7118/2009** **-5-** Hence, a migrant workman who comes to the State of Kerala and seeks an employment directly cannot be said to be covered under the said definition. The definition clause deals with any such workman being employed through or by a contractor, which is also intended at ensuring that no exploitation is made of such workman by the intermediary. 5. The Treaty of Peace and Friendship dated 31[st] July, 1950, between the Government of India and the Government of Nepal, as placed before this Court by the learned Assistant Solicitor General, as directed by this Court by interim order dated 11.02.2015, clearly indicates that citizens of Nepal are allowed free entry into the territories of India and even without a visa and hence, the enactment would not have any application to such persons. ## **W.P.(C) No. 7118/2009** **-6-** 6. The further contention is on Ext.P8 order. True, there is an anomaly insofar as Ext.P7, having ordered a remand and then Ext.P8 order being passed by the District Labour Officer on the very same subject matter. This Court would have remanded the matter for a fresh consideration, but for the fact that the above matter has been pending here for seven long years. 7. The 3[rd] respondent has also been carrying on the loading and unloading work in his establishment with his attached workers. The right of an individual establishment to entrust such loading and unloading work to their attached workers is declared by **Majeed M. v. District Labour Officer, Palakkad and Others** **- 2015 KHC 2400** , **Muhammed Shafeek and Others v. District Labour Officer, Palakkad and Others - 2015 (1) KHC 550** and **Alfred Thomas v. State of Kerala and Others - 2015 (5) KHC 275** . ## **W.P.(C) No. 7118/2009** **-7-** 8. A reading of Ext.P8 would also indicate that the Faroke Assistant Labour Officer, who granted registration, had filed a report dated 06.10.2008 before the appellate authority, informing the appellate authority that the Kerala Headload Workers' Welfare Board was heard before the registration was granted under Rule 26A of the Rules of 1981. The Assistant Labour Officer had also reported that prior to such report, he had inspected the premises on 04.10.2008, wherein it was found that only the nine attached workers were carrying on the loading and unloading activities. For all the above reasons, the writ petition is found to be devoid of merit and the same is dismissed. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 12/8/16