Writ Appeal No. 2416 of 2018, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY,THE 06TH DAY OF MARCH, 2019 / 15TH PHALGUNA, 1940** **WA.No. 2416 of 2018** **[AGAINST THE JUDGMENT DTD.10.7.2018 IN RP NO.243 OF 2018 IN WP(C) 38802/2017 of HIGH COURT AND JUDGMENT IN WP(C)NO.38802/2017]** ## **APPELLANTS/REVIEW PETITIONERS/RESPONDENTS 7 TO 9 & 11 TO 14:** - **1 MURALEEDHARAN.K.R, AGED 50 YEARS, S/O.RAGHAVAN, 6/113, KUNNATH HOUSE, ARUVAPPARA P.O., VENGOOR-683545, ERNAKULAM DISTRICT.** - **2 ELDHOSE P.POULOSE, POKKATHAYIL HOUSE, ARUVAPPARA P.O., VENGOOR-683545, ERNAKULAM DISTRICT.** - **3 BABU V.G., VELAMAVUKUDY, ARUVAPPARA P.O., VENGOOR-683545, ERNAKULAM DISTRICT.** - **4 SHIBU P.G., PALLATHUNGAL HOUSE, ARUVAPPARA P.O., VENGOOR-683545, ERNAKULAM DISTRICT.** - **5 BABY CHERADI, PRESIDENT, INTUC UNION, VENGOOR MANDALAM COMMITTEE, CHERADI HOUSE, KOMBANAD, PIN -683545.** - **6 ANIL NARAYANAN, SECRETARY, ERNAKULAM HEADLOAD WORKERS UNION (BMS), VENGOOR PANCHAYAT COMMITTEE, CHAMAKKALA VEEDU, KOMBANAD P.O., PIN-683545.** - **7 DICLUS T.P., SECRETARY, FOREST AND GENERAL WORKERS UNION (CITU), VENGOOR PANCHAYAT, THOTTUNKARA HOUSE, ARUVAPPARA P.O., VEGOOR, PIN -683545.** WA NO.2416 OF 2018 :-2-: - **BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.ANOOP.V.NAIR** ## **RESPONDENTS:** - **1 K.V. ANTONY,** - **S/O.VARKEY, AGED 59 YEARS, PRESIDENT, HEAD LOAD WORKERS UNION (CITU), PAYYAL UNIT, NEDUNGAPPARA P.O., PIN-683545 RESIDING AT KUNNATHUKUDI PULLAN HOUSE, PAYYAL, NEDUNGAPPARA P.O., ERNAKULAM DISTRICT-683545.** - **2 THAMPAN P.K., S/O.KURUMBAN, SECRETARY, INTUC UNION, PAYYAL UNIT, PAYYAL, NEDUNGAPPARA P.O., PIN-683545 RESIDING AT PULIKKAMALi HOUSE, PAYYAL, NEDUNGAPPARA P.O., ERNAKULAM DISTRICT-683545.** - **3 THE DEPUTY LABOUR COMMISSIONER, ERNAKULAM, PIN-682030.** - **4 THE DISTRICT LABOUR OFFICER, ERNAKULAM, PIN-683542.** - **5 THE ASSISTANT LABOUR OFFICER, PERUMBAVOOR, PIN-682030.** - **6 STATE OF KERALA, REP.BY SECRETARY, DEPARTMENT OF LABOUR AND RAHABILITATION SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **7 THE MANAGER, KERALA STAGE BEVERAGES CORPORATION LTD., PAYYAL, NEDUNGAPPARA, PIN-682545.** - **8 THE SECRETARY, VENGOOR GRAMA PANCHAYAT, VENGOOR, PIN-683545.** - **9 AUGUSTINE ANTONY, PERUMKUZHIYIL, NEDUNGAPARA P.O., VENGOOR-683545.** - **10 THE CHAIRMAN, KERALA HEADLOAD WORKERS WELFARE BOARD, SUB COMMITTEE, PERUMBAVOOR, PIN-683542.** WA NO.2416 OF 2018 :-3-: **BY ADVS. SRI.K.A.HAZAN SRI.S.KRISHNAMOORTHY, SC, KHLWWFB (BY ORDER) SMT.M.M.FATHIMA JALEENA SRI.V.J.JAMES** ## **OTHER PRESENT:** **R3 TO R6 BY SR. GP SRI.P.P.THAJUDEEN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON** **11.02.2019, THE COURT ON 06.03.2019 DELIVERED THE FOLLOWING:** WA NO.2416 OF 2018 :-4-: ## **W.A.NO.2416 OF 2018** ## **JUDGMENT** ## **N.ANIL KUMAR,J:** This writ appeal is filed challenging the order dated 10.7.2018 in R.P.No.243/2018 in WP(C) No.38802/2017, as also the judgment dated 11.1.2018 in the above writ petition holding that the petitioners 1 and 2 in the writ petition and other workers included in the pool constituted by the Kerala Headload Workers Welfare Board (hereinafter referred to as 'the Board') will be entitled to carry on the loading and unloading work at the place Payyal including in the outlet of the Kerala State Beverages Corporation (hereinafter referred to as 'the BEVCO'). 2. The appellants are petitioners in the above review petition and the respondents 7 to 9 and 11 to 14 in the writ petition. The respondents in this appeal are the respondents in the review petition and petitioners 1 and 2 and the respondents 1 to 6, 10 and 15 in the above writ petition. For the sake of convenience, the parties are hereinafter referred to as 'the petitioners' and 'the respondents' according to their status in the writ petition unless WA NO.2416 OF 2018 :-5-: ## otherwise stated. 3. Ext.P23 order passed by the first respondent in an appeal preferred under Section 21(6) of the Kerala Headload Workers Act, 1978 (hereinafter referred to as 'the Act') was under challenge in the writ petition. 4. The petitioners are stated to be headload workers at Payyal in Ernakulam District, after having obtained registration under Rule 26A of the Kerala Headload Workers Rules, 1981 (hereinafter referred to as 'the Rules') to carry on the headload work pursuant to Exts.P1 to P11 identity cards (Form XI )issued under Rule 26A (3) of the Rules. Exts.P1 to P11 would indicate that the petitioners are unattached headload workers normally worked at Payyal within Assamannur Grama Panchayath. 5. Respondents 7 to 14 are headload workers holding registration under Rule 26A of the Rules to carry on headload work at Vengoor. Ext.R7(a) to R7(g) would indicate that the respondents are carrying on loading and unloading work at Vengoor within Vengoor Panchayath. WA NO.2416 OF 2018 :-6-: 6. In the year 2017, the BEVCO established an outlet in the locality. Being a fertile field for loading and unloading, both the headload workers at Payyal and Vengoor staked their claim to carry on the loading and unloading work in the outlet. The petitioners staked their claim on the strength of Rule26A Cards issued in their favour by the competent authority to carry on loading and unloading work for the place Payyal within Assamannur Panchayath whereas respondents 7 to 14 staked their claim on the basis of Rule 26A cards issued in their favour at Vengoor within Vengoor Panchayath. Respondents 7to 14 maintained that the outlet is situated at Odakkalikavala coming within Vengoor and therefore, they are legally entitled to carry on loading and unloading work for the place called Vengoor as they hold valid registration under Rule 26A of the Rules. On the other hand, the petitioners maintained that the outlet is situated at Payyal and the place is popularly known as Payyal and it has no connection with Vengoor as contended by the party respondents. In fact, the geographical location of BEVCO outlet in the locality WA NO.2416 OF 2018 :-7-: was seriously under challenge. Consequent to the dispute, the District Labour Officer adjudicated the same as provided under Section 21(4) of the Act. After adjudication, the District Labour Officer found that the BEVCO outlet is located at the place called Payyal and the petitioners and others who obtained registration under Rule 26A of the Rules for the place Payyal are entitled to be engaged for the work in the outlet in preference to respondents 7 to 14 who have registered under the Rules for the place at Vengoor. 7. Challenging Ext.P14 order, respondents 7 to 14 filed an appeal before the first respondent- the Deputy Labour Commissioner, Ernakulam. After hearing both parties, the second respondent reversed Ext.P14 order holding that the outlet of BEVCO is geographically situated within the limits of Vengoor Panchayath and therefore respondents 7 to 14 are entitled to work in preference to the petitioners as per Ext.P23 order. Feeling aggrieved, the petitioners challenged Ext.P23 order before the learned Single Judge. WA NO.2416 OF 2018 :-8-: 8. On appreciation of the entire facts and circumstances of the case, the learned Single Judge found that the outlet of BEVCO is actually situated at Payyal. However, geographically, Payyal is a four corner junction, of which three corners fall within the limits of Assamanuur Panchyath and one corner falls within the limits of Vengoor Panchayath respectively and that the outlet of BEVCO is situated in the corner of the junction which falls within Vengoor Panchayath. Since the BEVCO outlet is situated within Vengoor Panchayath, it was held that the respondents 7 to 14, who hold registration within Vengoor Panchayath have a superior claim for the work on the basis of Rule 26A card issued in favour of respondents 7 to 14 for the place Vengoor in Vengoor Panchayath in preference to the claim of the petitioners who have obtained registration to carry on the loading and unloading work only at the place called Payyal. 9. Before proceeding further, it would be useful to refer to some of the sequence of events which led to the claim made by the petitioners. Petitioners bona fide believe that they are WA NO.2416 OF 2018 :-9-: entitled to do loading and unloading work at the outlet where the work is claimed by the petitioners in the writ petition at Payyal, where the outlet of BEVCO is situated. Initially, the District Labour Officer who had adjudicated the dispute had visited the location of the outlet of the BEVCO and stated in Ext.P14 order that the outlet is located at Payyal. Exts.P1 to P11 interalia would indicate that Rule 26A card issued to the petitioners is for the place at Payyal in Asamannur Panchayath whereas R7(h) to R7(k) identity cards issued to respondents is for the place called Vengoor. Going by the cards issued to the petitioners and respondents by the competent authority under the Act, it is clear that the petitioners have no right to claim work as headload workers at Vengoor within Vengoor Panchayath whereas the cards in their favour stand for the place Payyal in Assamannur Panchayath. 10. On going through the pleadings in the writ petition, there is nothing to indicate that the area where the petitioners have claimed loading and unloading work is a Scheme covered area under the Kerala Headload Workers (Regulation of Employment WA NO.2416 OF 2018 :-10-: and Welfare)Scheme, 1983 (for short 'the Scheme'). Under Paragraph 6 of the Scheme, no headload worker, who is not a registered headload worker under Rule 26A of the 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 the Scheme in the area. This would lead to the inference that the BEVCO outlet was situated in an area where the Scheme was not enforced on the date of filing the writ petition. It goes without saying that the alleged cause of action for filing the writ petition was based on Rule 26A card issued to the petitioners, is not an absolute right for the trade unions. The fourth respondent in the writ petition is the Manager, BEVCO outlet at Payyal. The fourth respondent being the Manager of a public sector undertaking has not raised any contention that in an area where the Scheme is not applicable, the employer can engage any headload worker of his own choice presumably for the reason that the fourth respondent is prepared to pay loading and unloading charges to the workers for the work done in accordance with the wages WA NO.2416 OF 2018 **==> picture [23 x 8] intentionally omitted <==** v. prescribed by the competent authority. In **Raghavan Superintendent Of Police** [1998(2) KLT 732 (FB)] and in **Karunakara Kurup** v. **State of Kerala** [2004(1) KLT 215 (FB)], this Court held that in an area where the Scheme is not applicable employer can engage any headload worker of his own choice. 11. To put it differently, in an area where the Scheme is not applicable, there is no legal right to claim employment by the Trade Unions on the strength of Rule 26A cards issued in favour of scattered workers. In the case on hand, the petitioners and party respondents are arrayed in their individual capacity. Trade Unions are not parties to the proceedings. Merely because respondents are Office bearers of the unions representing them, the same itself is not a ground to hold that the unions are in the party array. Partyin- person and party representing the union are different. Knowing fully well that Rule 26A cards issued to an unattached worker is not sufficient to stake claim for employment by the unions as of right in an area where the Scheme was not implemented, while the matter was pending consideration before the first respondent, the WA NO.2416 OF 2018 **==> picture [24 x 8] intentionally omitted <==** Board extended the functional operation of the Scheme to the place at Payyal. 12. Rule 6(2) of the Scheme inter alia provides that 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 any area to which the Scheme applies unless he is granted a further registration under the provisions of the Scheme. Annexure VII(5) which was made available before the writ court would show that the District Committee, Kerala Headload Workers Welfare Board, Ernakulam convened on 6.10.2017 recommended to start pool by including scattered workers for unloading in Beverage Shop No.07037 in Payyal Area. The recommendation of the Sub Committee was approved by the District Committee and pursuant thereto the District Committee resolved to start pool by including scattered workers for the unloading in Beverages No.07037 in Payyal Area coming under the jurisdiction of Sub Office, Perumbavoor. Paragraph 6A of the Scheme provides that WA NO.2416 OF 2018 **==> picture [24 x 8] intentionally omitted <==** at the commencement of the Scheme in any area, a headload worker, who is not permanently employed by an employer or contractor and who is registered under Rule 26A of the Rules may submit his application in Form A to the Convener of the Committee concerned for registration of the Committee under the Scheme. On receipt of the application under Paragraph 6A, for the vacancies in various pools under the Sub Committee, Perumbavoor, the Convener of the Committee granted registration to the eligible workers under Paragraph 6A(2) to the eligible workers, who had submitted applications to the existing vacancies in terms of references under Paragraph 6B of the Scheme as per Annexure VII(6). The Board selected five headload workers including the second petitioner for membership under the Scheme in terms of order dated 6.10.2017. The identity cards issued by the Board to the five workers under clause 6A of the Scheme are also part of the records. The said decision indicates that the Board has decided to form a new pool solely for the purpose of carrying out the loading and unloading work at the outlet of the BEVCO. WA NO.2416 OF 2018 :-14-: Further, the schedule of the Scheme contains the entire Ernakulam District. Needless to say, the Board is competent to extend the functional operation of the Scheme to any place in Ernakulam District. The identity cards issued by the Board to the five headload workers under Paragraph 6A of the Scheme would indicate that certain procedural formalities required under the Act and Scheme have been complied with by the Board. Thus, the loading and unloading work at the place where the outlet of BEVCO is situated is now regulated under the Scheme. Under Paragraph 8 of the Scheme, every registered headload worker, to whom registration has been granted by the Convener of the Committee shall work only in the area per allotment made by the Committee. Paragraph 6A of the Scheme provides registration of headload worker under the Scheme at the commencement of the Scheme whereas paragraph 6B of the Scheme provides procedure for replenishment of workers in the rolls of the Committee. Paragraph 13 of the Scheme mandates that the Scheme when brought into force shall be administered by the committee WA NO.2416 OF 2018 :-15-: constituted under Section 18 of the Act. Section 18(8) of the Act prescribes the functions of the Committee including to pool the headload workers, who are not employed under any employer or contractor. Paragraph 19 of the Scheme provides that the Committee shall determine the number of headload workers needed for their area and for this purpose, increase or decrease the number in their register. 13. In **Chumattu Thozhilali Congress** v. **State of Kerala** [1998(1) KLT 465], this Court held that the Committee has to determine the number of headload workers needed for the area and paragraph 20 of the Scheme says that the Chairman shall make necessary arrangements to pool the registered workers into as many groups as are needed and locate these groups at locations decided by him. It is for the Committee and Chairman to decide how many members are necessary in a pool. Judged by the above standards, it is crystal clear that in an area where the Scheme has been implemented, the headload workers to whom identity cards under Paragraph 6A have been issued, have preferential right for WA NO.2416 OF 2018 :-16-: employment over the scattered workers or unattached workers on the basis of Rule 26A card issued under the Rules. 14. Admittedly, pool has been constituted for loading and unloading work at the place where the outlet of BEVCO is situated. Under paragraph 6D of the Scheme, any person who has been registered and issued an identity card as per the provisions of paragraphs 6A,6B and 6C shall be entitled for employment under the Committee in appropriate pool subject to any decision of the Committee under Section 18(8)(a) of the Act. Paragraph 6E of the Scheme provides an appeal. We think, it is just and proper to narrate paragraph 6E as follows:- “ **6E.Appeal.--** (1) Any person aggrieved by an order of the Convener under sub-paragraph(4) of paragraph 6A,subparagraph(5) of paragraph 6B and sub-paragraph(5) of paragraph 6(C) as the case may be file an appeal within 60 days from the date of receipt of such order to the Committee concerned. Such appeal shall be addressed to the Chairman of the Committee: Provided that the appellate authority may admit an appeal filed after the expiry of the said period if the Committee is satisfied that the appellant had sufficient cause for not filing the appeal within the said period. Provided further that no such appeal shall be admitted after a period of six months from the date of the order of the Convener appealed against. (2) On receipt of an appeal the Committee shall make such enquiries as they deem fit and after giving the appellant and other affected parties if any, an opportunity of being heard decide the appeal within a period of 60 days or within 2 consecutive meetings of the Committee convened from the date of receipt of WA NO.2416 OF 2018 :-17-: the appeal whichever is later. In deciding the appeal, all the provision of paragraphs 6A.6B and 6C _mutatis mutandis_ will be binding on the Committee. The decision of the Committee shall be final.” 15. The petitioners have not challenged the order of the Convener before the competent authority in accordance with paragraph 6E of the Scheme. Under the circumstances, the petitioners have no right to claim preferential right over the pool workers on the ground of regional priority. It is for them to establish their right before the appropriate authority in accordance with law. In case the pool was constituted to the detriment of the petitioners violating the norms prescribed under the Scheme, the petitioners ought to have agitated the same before the competent authority and got the matters set right in accordance with law. Rightly or wrongly, such a course was not adopted in this case presumably for the reason that the constitution of the pool is indirectly a matter in issue between the parties in this proceedings. It is settled principle of law that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not at all. This principle was approved and accepted in well WA NO.2416 OF 2018 :-18-: known cases of **Taylor** v. **Taylor** [(1875)1 Ch.D.426] and **Nazir Ahmed** v. **Emperor** [AIR 1936 PC 253]. It is true that Paragraph 6E of the Scheme is purely procedural in character and that ordinarily procedural law should not be given primacy by courts as would defeat the ends of justice. Nevertheless, if the law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner, courts have no option but to enforce the law as it is. Doctrine of finality as contemplated under Paragraph 6E of the Scheme is applicable to any person aggrieved by an order of the Convener as contemplated under Paragraph 6E of the Scheme unless the order is challenged in accordance with the Scheme. Therefore, the decision taken by the Headload Workers Welfare Fund Board extending the pool to the beverages outlet is not liable to be interdicted in this appeal. The question as to whether the Board cannot extend the pool by their own decisions arbitrarily to two Panchayaths is also a matter to be decided in appropriate WA NO.2416 OF 2018 **==> picture [24 x 8] intentionally omitted <==** proceedings provided an appeal is filed challenging the decision of the Board. 16. Challenging the judgment of the learned Single Judge, respondents 7 to 9 and 11 to 14 initially filed W.A.No.314/2018. They also produced three more additional documents in the above appeal to reiterate their contention that the place where the BEVCO is situated is not Payyal and the name of the place is Odakalikavala. By judgment dated 5.2.2018, another Division Bench of this Court held that the appropriate remedy would be to file a review before the court which passed the judgment, especially based on documents which are not produced before the learned Single Judge. Hence, the writ appeal was dismissed as withdrawn with liberty to file a review petition. Consequently, R.P.No.243/2018 was filed before the learned Single Judge. According to the learned Single Judge, additional documents would not have made any difference at all in the judgment, as the court had found even without the aid of said documents, the outlet is situated within the limits of Vengoor WA NO.2416 OF 2018 :-20-: Panchayath and consequent to the extension of the functional operation of the to that area, respondents 7 to 14 would have had a better claim for the work in the outlet of the BEVCO. 17. We have considered the rival contentions and the materials placed on record. On a consideration of the entire facts and circumstances in detail, the learned Single Judge rightly held that the workers included in the pool constituted by the Board are entitled to do the loading and unloading work at the outlet of BEVCO. The learned Single Judge examined the question in the right perspective and had reserved the right of the scattered workers, who had registered to work in both Assamannur Panchayath and Vengoor Panchayath, as the headload workers, who are entitled to be considered for registration under the Scheme as and when the pool is constituted by the Board in the said area. The learned Single Judge, by reasoned judgment dated 11.1.2018 in the writ petition and order dated 10.7.2018 in the review petition, affirmed the findings of the appellate authority under the Scheme holding that the workers included in the pool WA NO.2416 OF 2018 **==> picture [24 x 8] intentionally omitted <==** constituted by the Board will be entitled to carry on the loading and unloading work at Payyal included in the outlet of BEVCO adding that the impugned judgment will not preclude respondents 7 to 14 from claiming membership of the Scheme for carrying on loading and unloading work at Payyal in accordance with law. In view of the foregoing discussion and examining the issues arising in this appeal from all corners, we are of the view that the impugned judgment and order of the learned Single Judge do not suffer from any illegality so as to call for interference by the High Court in this Writ Appeal. While agreeing with the findings of the learned Single Judge, we also direct the competent authority constituted under the Act to dispose of the applications for membership, if any filed by respondents 7 to 14 claiming membership under Paragraph 6A of the Scheme for carrying on loading and unloading work at Payyal within three months from the date of receipt of the applications in accordance with law. WA NO.2416 OF 2018 :-22-: In the result, the writ appeal fails and is accordingly dismissed with the above observations. ## Sd/- **P.R.RAMACHANDRA MENON** , JUDGE sd/- **N.ANIL KUMAR** , JUDGE MBS/