W.P.(C) No.9236/21 - Brijesh John and Others v. Assistant Labour Officer and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **FRIDAY, THE 17[TH] DAY OF DECEMBER 2021/26TH AGRAHAYANA, 1943** **WP(C) NO. 9236 OF 2021** **PETITIONERS:** **1 BRIJESH JOHN AGED 39 YEARS, S/O. JOHNROSE, ANUGRAHA, NEAR LMSHS SCHOOL, JUBILINAGAR, VATTAPPARA, THIRUVANANTHAPURAM, PIN-695 028** - **2 PRAVEEN LAL.V. AGED 37 YEARS, S/O. VELAPPAN.K., LAL COTTAGE, MULLASSERI, KARAKULAM P.O., THIRUVANANTHAPURAM,PIN-695 564** - **3 RAJEEV.P., AGED 38 YEARS, S/O. PUSHPANGATHAN.N., RAJEEV BHAVAN, CHITTALAMKODE, KALLAYAM P.O., THIRUVANANTHAPURAM,PIN-695 043** - **4 REJI DAS J.P., AGED 29 YEARS,S/O. NJANADAS, JOSE BHAVAN, NALLOORKONAM, CHEMPAZHANTHY P.O., THIRUVANANTHAPURAM,PIN-695 587** **5 SHINTO GRANITES AND TILES, KP/536B, VATTAPPARA, THIRUVANANTHAPURAM,PIN-695 503, REPRESENTED BY ITS PROPRIETOR BAIJULAL.T. BY ADVS. SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN** W.P.(C) No.9236/21 ## **-:2:-** **SRI.VIJAY V. PAUL SMT.KARTHIKA MARIA SRI.ANIL SEBASTIAN PULICKEL SMT.DIVYA SARA GEORGE SMT.JAISY ELZA JOE SHRI.ABI BENNY AREECKAL SMT.LEAH RACHEL NINAN SMT.NANDA SANAL SMT.SANITA SABU VARGHESE SMT.VEENA RAVEENDRAN** ## **RESPONDENTS:** - **1 ASSISTANT LABOUR OFFICER REVENUE TOWER, NEDUMANGAD P.O., THIRUVANANTHAPURAM,PIN-695 541** - **2 DISTRICT LABOUR OFFICER, DISTRICT LABOUR OFFICE, THOZHIL BHAVAN, THIRUVANANTHAPURAM,PIN-695 036** - **3 KERALA HEADLOAD WORKERS WELFARE BOARD, NEDUMANGAD UNIT, NEDUMANGAD SUB OFFICE, THIRUVANANTHAPURAM, PIN-695 541, REPRESENTED BY ITS CHAIRMAN R1 & R2 BY SRI.JUSTIN JACOB, SR. GOVT. PLEADER R3 BY ADV SHRI.THOMAS ABRAHAM** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2021, THE COURT ON 17.12.2021 DELIVERED THE FOLLOWING:** **-:3:-** W.P.(C) No.9236/21 **BECHU KURIAN THOMAS, J.** **-----------------------------------W.P.(C) No.9236 of 2021 --------------------------------------** Dated this the 17[th] day of December, 2021 ## **JUDGMENT** Petitioners are challenging the orders rejecting the application for registration as headload workers in the establishment of the fifth petitioner. The registering authority, as well as the Appellate Authority, rejected the applications filed by petitioners 1 to 4 for registration as headload workers under Rule 26A of the Kerala Headload Workers Rules, 1981 (for short 'the Rules') for the reason that the Kerala Headload Workers Welfare Board (for short 'the Board') had objected to the grant of registration. 2. On appeal, filed individually by petitioners 1 to 4, the Appellate Authority, by a common order dated 30.03.2021, rejected the appeal for three reasons:- (i) the service records, including the wages register and muster roll do not reflect the endorsement of the Assistant Labour Officer (ii) if registration is granted, it will affect the income of the Board and, (iii) granting registration will affect the employment opportunities and the income of the existing registered workers. 3. Alleging that the orders of both authorities are perverse and patently contrary to law, this writ petition is preferred seeking, inter alia, directions to the respondents for registration of petitioners 1 to 4 as **-:4:-** W.P.(C) No.9236/21 headload workers attached to the fifth petitioner. 4. A statement has been filed on behalf of the Board contending that the fifth petitioner is registered with the Board from 2017 onwards and that loading and unloading work in the establishment of the fifth petitioner is carried out by the registered workers of the pool under the Board. It was further pleaded that the establishment of the fifth petitioner was situated in an area covered by the headload workers welfare scheme and that if registration is granted as sought for, the same will destabilize the system. The third respondent thus sought for dismissal of the writ petition. 5. I have heard Sri. Santhosh Mathew, the learned counsel for the petitioners, Sri. Justin Jacob, the learned Government Pleader for respondents 1 and 2 and Sri. Thomas Abraham, the learned counsel for the third respondent. 6. This Court has already held in several decisions that the employer has a right to get his employees registered as headload workers under rule 26A of the Rules. The decisions **Rajeev v. District Labour Officer** (2010 (4) KLT 783) as well as in **Manzoor v. District Labour Officer** (2021 (5) KLT 554) are relevant in the above context. It was held in the aforecited decisions that, while considering the application for registration as headload workers under Rule 26A of the Rules, the Registering Authority's lookout is not whether the applicant was a headload worker or W.P.(C) No.9236/21 ## **-:5:-** not prior to such registration, but whether the employer is willing to engage the applicant as a headload worker. It was further held that there was no requirement under law, that the applicant must have been working in the establishment as a headload worker for becoming eligible for such registration. The fact that the application was submitted by the workers themselves is evidence of the willingness of the workers to work as headload workers. The nature of work indulged in by the applicants, prior to the application, has no significance as the applicants could not have worked as headload workers or do headload work in a scheme covered area, without obtaining registration. The decision of the Division Bench in **Gangadharan C.P. and Another v. Abdul Nasir and Others** [2016 (5) KHC 238] is also relevant. 7. In another decision in **Prasanna Kumar V. District Labour Officer** (W.P.(C)No.6287 of 2021), it was observed by this Court as follows: _“In this context, it may be worthwhile to remind ourselves that every person has a fundamental right under Article 19(1)(g) to carry on any occupation and the same can be subjected only to reasonable restrictions as provided for under Article 19(6). The work of loading and unloading is not a work that requires any specialised experience or technical or educational qualifications. Any person who is willing to do loading and unloading must have the freedom to do the said work unless it is curtailed by a reasonable restriction. The restriction that is introduced through the Act for doing headload work, in a scheme covered area, is the requirement of registration as headload worker. If the restriction of registration curtails the fundamental right of every individual to do headload work and the said restriction has to be constitutionally valid, without falling foul of_ W.P.(C) No.9236/21 ## **-:6:-** _Article 19(1)(g) and Article 14, then that restriction must be reasonable. If the restriction is not reasonable, it will create an unreasonable classification resulting in discrimination between those left out of the group and those included in the group of headload workers. Discrimination being the antithesis of equality, the whole Act itself may not stand the test of constitutionality. To avoid such a situation, the provisions of the Act relating to registration have been read down to mean willingness to do headload work with sufficient physique and employer's consent is sufficient to grant registration._ 8. The aforesaid decisions clearly declared the right of an employee, attached to an establishment to obtain registration as a headload worker under the Act and its Rules, even in scheme covered areas. The Full Bench decision in **Raghavan v. Superintendent of Police** (1998 (2) KLT 732), had held that all headload workers whether permanently employed in an establishment or not are required to get registration under rule 26A of the Rules. 9. The decision of the Full Bench in **Sureshkumar R. and Others v. District Labour Officer, Tvm and Others** (2021 (2) KHC 215), was considering the question of whether the existing cardholders have a right of appeal against the grant of fresh registration. The said decision does not lay down a proposition that in a scheme covered area a permanent worker attached to an establishment cannot obtain registration under Rule 26A of the Rules. On the other hand, the decision in **Raghavan’s** Case indicates that there is no restriction to obtain such registration. Thus the decision in **Sureshkumar** has no applicability to the facts of the present case. **-:7:-** W.P.(C) No.9236/21 10. When the employees of the fifth petitioner have expressed their inclination to work as headload workers and even applied for registration, there is no legal justification, as has occurred in the present case, to deny registration to such employees, as headload workers under the Act and Rules. The reasons stated by the Registering Authority, as well as the Appellate Authority that registration to petitioners 1 to 4 will affect the livelihood of others is not a valid reason in the eyes of law. The reduction of income or job opportunities for existing headload workers is not at all a ground under law for denying registration to workers who are willing to do loading and unloading works. 11. As rightly contended by the learned counsel for the petitioners, the absence of certification by the Assistant Labour Officer on the service records was never a ground raised before the registering authority nor is there any legal basis for such a certification under the Kerala Headload Workers Act, 1978. Certification of the service registers is not a condition precedent for grant of registration under Rule 26A of the Rules. Further, the reasoning that grant of registration to the employees of the fifth petitioner will affect the income of the Board is too odious to be accepted by a court of law. 12. In view of the above considerations, this Court is of the opinion that the orders issued by the registering authority as well as the Appellate **-:8:-** W.P.(C) No.9236/21 Authority, copies of which are produced as Ext.P6 and Ext.P12, are perverse and are hence set aside. It is declared that the employees of the fifth petitioner, who had applied for registration as headload workers, are entitled to obtain registration as headload workers, attached to the establishment of the fifth petitioner. 13. Accordingly, there will be a direction to the first respondent to register petitioners 1 to 4 as headload workers attached to the fifth petitioner establishment and issue necessary identity cards as contemplated under Rule 26A of the Kerala Headload Workers Rules, 1981, in a time-bound manner, at any rate, within a period of one month from the date of receipt of a copy of this judgment. The writ petition is allowed as above. **Sd/-** **BECHU KURIAN THOMAS** **JUDGE** vps W.P.(C) No.9236/21 ## **-:9:-** ## **APPENDIX OF WP(C) 9236/2021** ## **PETITIONER'S/S' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE APPLICATION FOR REGISTRATION DATED 28.07.2020 SUBMITTED TO THE 1ST RESPONDENT BY THE 1ST PETITIONER** **EXHIBIT P2 TRUE COPY OF THE APPLICATION FOR REGISTRATION DATED 20.02.2020 SUBMITTED TO THE 1ST RESPONDENT BY THE 2ND PETITIONER** - **EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR REGISTRATION DATED 20.02.2020 SUBMITTED TO THE 1ST RESPONDENT BY THE 3RD PETITIONER** - **EXHIBIT P4 TRUE COPY OF THE APPLICATION FOR REGISTRATION DATED 20.02.2020 SUBMITTED TO THE 1ST RESPONDENT BY THE 4TH PETITIONER** - **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 25.11.2020 SENT BY KERALA HEADLOAD WORKERS WELFARE BOARD TO THE 1ST RESPONDENT** - **EXHIBIT P6 TRUE COPY COMMON ORDER NO.36/2020/NDD DATED 28.12.2020 ISSUED BY THE ASSISTANT LABOUR OFFICER** - **EXHIBIT P7 TRUE COPY OF THE STATUTORY APPEAL DATED 27.1.2021 FILED BEFORE DISTRICT LABOUR OFFICER AGAINST THE ORDER OF ASSISTANT LABOUR OFFICER BY 1ST PETITIONER** - **EXHIBIT P8 TRUE COPY OF THE STATUTORY APPEAL DATED 27.1.2021 FILED BEFORE DISTRICT LABOUR OFFICER AGAINST THE ORDER OF ASSISTANT LABOUR OFFICER BY 2ND PETITIONER** - **EXHIBIT P9 TRUE COPY OF THE STATUTORY APPEAL DATED 27.1.2021 FILED BEFORE DISTRICT LABOUR OFFICER AGAINST THE ORDER OF ASSISTANT** W.P.(C) No.9236/21 ## **-:10:-** ## **LABOUR OFFICER BY 3RD PETITIONER** **EXHIBIT P10 TRUE COPY OF THE STATUTORY APPEAL DATED 27.1.2021 FILED BEFORE DISTRICT LABOUR OFFICER AGAINST THE ORDER OF ASSISTANT LABOUR OFFICER BY 4TH PETITIONER** **EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 05.02. 2021 IN W.P.(C) NO.2943 OF 2021 OF THIS HON'BLE COURT** **EXHIBIT P12 TRUE COPY OF THE COMMON ORDER DATED 30.03.2021 ISSUED BY THE 2ND RESPONDENT AGAINST THE PETITIONERS**