Writ Appeal Nos. 23 & 176 of 2023 (WA 23 & 176 of 2023)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 24[TH] DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944 WA NO. 23 OF 2023** **AGAINST THE JUDGMENT IN WP(C) 22388/2022 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/RESPONDENT NO.7** KERALA HEADLOAD WORKERS WELFARE BOARD REPRESENTED BY ITS CHAIRMAN ERNAKULAM DISTRICT COMMITTEE, KUMMANCHERY BUILDING, T.D. ROAD, KOCHI -682035 BY ADV S.KRISHNA MOORTHY(ERNAKULAM) ## **RESPONDENTS/PETITIONERS/RESPONDENTS 1 TO 6** 1 ASIATIC TRANSPORTS PETITIONER -REPRESENTED BY ITS PROPRIETOR MR. K.M. NASSARUDDIN, H. NO. XXIII/624, PALLIKUNNIL HOUSE, BYE PASS ROAD, NETTOOR, ERNAKULAM -682040, PIN - 682040 2 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 3 STATION HOUSE OFFICER MULAVUKAD POLICE STATION, PONNARIMANGALAM, ERNAKULAM ., PIN - 682504 4 GATEWAY DISTRIPARKS (KERALA ) LTD REPRESENTED BY ITS DIRECTOR, CONTAINER FREIGHT STATION, MAIN ROAD, NH 966A, VALLARPADAM, ERNAKULAM -682504, PIN - 682504 5 ERNAKULAM DISTRICT HEADLOAD AND GENERAL WORKERS WA 23 & 176 of 2023 2 CONGRESS (INTUC) REPRESENTED BY ITS GENERAL SECRETARY, INTUIC BHAVAN, INTUC ROAD, VALANJAMBALAM, ERNAKUALM ., PIN - 682016 6 ERNAKULAM JILLA CONTAINER THOZHILALI SANGHAM (BMS) REPRESENTED BY ITS SECRETARY, BMS OFFICE, I.S. PRESS ROAD, ERNAKULAM ., PIN - 682018 7 HEADLOAD AND GENERAL WORKERS UNION ( CITU) REPRESENTED BY ITS DISTRICT PRESIDENT, KARL MARX BUILDING, NEAR TOWN HALL, BANERJI ROAD, ERNAKULAM -682018. 8 ADDL.R8: COCHIN PORT TRUST AUTHORITY, REPRESENTED BY ITS CHAIRMAN,WILLINGDON ISLAND,KOCHI,KERALA,PIN-682 009. * IS SUO MOTU IMPLEADED AS ADDITIONAL R8 AS PER ORDER DATED 7-223. BY ADVS. P.RAMAKRISHNAN - R1 GP SRI.SREEJITH V.S. - R2 M.GOPIKRISHNAN NAMBIAR - R4 MILLU DANDAPANI - R5 V.P.PRASAD – R6 AND R7 K.JOHN MATHAI(K/413/1984) JOSON MANAVALAN(J-526) KURYAN THOMAS(K/131/2003) PAULOSE C. ABRAHAM(MAH/58/2006) RAJA KANNAN(K/356/2008) NAYANPALLY RAMOLA(MAH/6224/2014) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2023, ALONG WITH WA.176/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA 23 & 176 of 2023 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 24[TH] DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944** **WA NO. 176 OF 2023** **AGAINST THE JUDGMENT IN WP(C) 22388/2022 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/RESPONDENT NO.4** ERNAKULAM DISTRICT HEADLOAD AND GENERAL WORKERS CONGRESS (INTUC) REPRESENTED BY ITS GENERAL SECRETARY, SHRI K.U. GOPI INTUC BHAVAN, INTUC ROAD, VALANJABALAM, ERNAKULAM 682 016. BY ADV MILLU DANDAPANI ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 3 AND 5 TO 7** 1 ASIATIC TRANSPORTS, REPRESENTED BY ITS PROPRIETOR MR. K.M. NASSARUDDIN, H.NO. XXIII/624, PALLIKUNNIL HOUSE, BYE-PASS ROAD, NETTOOR, ERNAKULAM 682 040. 2 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3 STATION HOUSE OFFICER, MULAVUKAD POLICE STATION, PONNARIMANGALAM, ERNAKULAM - 682 504. 4 GATEWAY DISTRIPARKS (KERALA) LTD., REPRESENTED BY ITS DIRECTOR, CONTAINER FREIGHT STATION, MAIN ROAD, NH-966A, VALLARPADAM, ERNAKULAM - 682 504. 5 ERNAKULAM JILLA CONTAINER THOZHILALISANGHAM (BMS), WA 23 & 176 of 2023 4 REPRESENTED BY ITS SECRETARY, BMS OFFICE, IS PRESS ROAD, ERNAKULAM - 682 018. 6 HEAD LOAD AND GENERAL WORKERS UNION (CITU), REPRESENTED BY ITS DISTRICT PRESIDENT, KARL MARX BUILDING, NEAR TOWN HALL, BANNERJI ROAD, ERNAKULAM 682 018. 7 KERALA HEADLOAD WORKERS WELFARE BOARD, ERNAKULAM DISTRICT COMMITTEE, KUMMANCHERY BUILDING, TD ROAD, KOCHI - 682035 REPRESENTED BY ITS CHAIRMAN. 8 ADDL.R8:COCHIN PORT TRUST AUTHORITY, REPRESENTED BY ITS CHAIRMAN,WILLINGDON ISLAND,KOCHI,KERALA,PIN-682 009. IS SUO MOTU IMPLEADED AS ADDITIONAL R8 AS PER ORDER DATED 7-22023. BY ADV PRASAD V.P - R6 ## **OTHER PRESENT:** SR.GP-SRI.T.K.VIPINDAS - R2 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2023, ALONG WITH WA.23/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA 23 & 176 of 2023 5 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------Writ Appeal Nos. 23 & 176 of 2023 ------------------------------------------Dated this 24[th] February, 2023** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The writ appeals raise the question of whether the members of a Pool constituted under the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 have an indefeasible right to carry on the loading and unloading work in the 3[rd] respondent's establishment, carried out through the petitioner. We refer to the parties from their status in the writ petition since appeals arise from the judgment in the single writ petition. 2. The petitioner is a proprietary concern engaged in the business of clearing, forwarding & transporting. The 3[rd] respondent has been appointed and notified as the Custodian of goods in the Container Freight Station (CFS) by the Commissioner of Customs. The petitioner has taken the contract to carry on the WA 23 & 176 of 2023 6 loading and unloading work in the CFS; which premises has been notified as a 'Customs Area' under Section 8(b) of the Customs Act and the activities carried on by the 3[rd] respondent is fully under the control of the Commissioner of Customs. It was argued that the Kerala Headload Workers Act has been made inapplicable to establishments owned and controlled by the Central Government as per the notification which brought into force the enactment. 3. The learned Single Judge relied on the decisions in **Hindustan Latex Employees Welfare Society v. Trivandrum District Headload and General Workers' Union (2010 (4) KLT 391)** and **APM Terminals India PVT. LTD, v. The Sub Inspector of Police (WPC 15595 of 2014 dated 9.3.2016)** to find that the area in which the 3[rd] respondent carries on its activities is fully under the control of the Customs and therefore is an establishment to which the Headload Workers Act, the Rules and the Scheme framed there under do not apply. Consequently, it was directed that if the petitioner's work of loading and unloading carried on within the premises of the 3[rd] respondent is obstructed, then, the police shall afford necessary protection to remove such obstruction. WA 23 & 176 of 2023 7 4. Sri.S. Krishna Moorthi, the learned Standing Counsel for the Welfare Board, the appellant in W.A. 23 of 2023, at the outset contends that the petitioner is not an establishment controlled or owned by the Central Government. The petitioner is a proprietary concern which has entered into an agreement with the 3[rd] respondent, the terms of which clearly indicates it to be a purely commercial venture. The 3[rd] respondent also has entered into a commercial agreement with the Commissioner of Customs and both the establishments are private establishments aimed solely at profiteering; over which the Central Government has absolutely no control. The terms of the lease entered into by the 3[rd] respondent with the Board of Trustees of the Cochin Port as seen from Ext.R4(a) is specifically read out to show the huge financial implications which also points to the large scale profit generated from the business activity. The learned counsel would stress the requirement for an all pervasive control or a major share holding, by the Central Government, for the exception to squarely apply. Both these aspects being absent and the activities of the 3[rd] respondent being carried in a Scheme covered area, the members of the Pool constituted under the Scheme have a right to carry on WA 23 & 176 of 2023 8 the loading and unloading work, unless the establishment has its own workers having Rule 26A cards; which in any case is not the contention of the petitioner. The decision in **Hindustan Latex Employees Welfare Society** (supra) is sought to be distinguished on the ground that the company which was carrying on a manufacturing unit was fully owned by the Central Government. The decision in **APM Terminals India PVT. LTD** (supra) was also sought to be distinguished on the ground that there, the police protection granted was on the ground that there was no permission to the headload workers to enter the bonded area of the Customs. In the present case, there is a statutory right on the members of the Pool constituted under the Scheme to carry on the loading and unloading work in the Scheme covered area and it is the bounden duty of the Customs to grant permission for entry of such workers into the premises of the 3[rd] respondent. It is also pointed out that there is no impediment in granting such permission since for the last more than one decade the petitioner was carrying on the loading and unloading work through the Pool workers. The same was stopped abruptly, thus interfering with the statutory right conferred on the workers. WA 23 & 176 of 2023 9 5. Sri.Millu Dandapani, learned counsel appearing for one of the Unions, the appellant in WA.176 of 2023, adopts the arguments of the Board. In addition it is pointed out that the writ petition by its nomenclature is one for police protection in which the learned Single Judge has granted a declaration of exemption thus frustrating the remedies available under the statute. It is pointed out that the Pool workers were carrying on the loading and unloading activities on the basis of an agreement entered into with the petitioner which has been violated by the abrupt stoppage to their engagement. Sri.V.P. Prasad, learned Counsel appearing for the other respondent Unions points out that there is not a single complaint raised by the petitioner regarding the work carried on by the Pool members. It is argued that abrupt termination of the agreement entered into with the workers puts the workers life in peril and literally, they are on the streets without any source of livelihood. 6. Sri.P.Ramakrishnan, learned counsel appearing for the petitioner, takes us through Exts.P1, P2 and P3 to impress upon us the pervasive control exerted by the Commissioner of Customs on the activities carried on in the 3[rd] respondent premises; which is WA 23 & 176 of 2023 10 carried on as per the guidelines framed by the Commissioner. The decision in **Hindustan Latex Employees Welfare Society** (supra) considered the issue of loading and unloading carried out by the Society, in premises which were also not owned by the Company and were leased out by the Society. Even then the Division Bench found that the establishment owned by the Central Government and the activities carried on by the Society, cannot be divorced from each other and there is a complete exemption from the provisions of the Headload Workers Act. In answer to the ground raised of earlier engagement of the Pool workers, it is pointed out that the Division Bench specifically held that an earlier engagement of Pool workers cannot result in a waiver of the right of exemption available, for ever. Insofar as **APM Terminals India PVT. LTD** (supra) is concerned, it is pointed out that the issue of exemption was never argued before the Division Bench which resulted in the Division Bench directing the Unions to approach the competent authority. Smt.Ramola, learned counsel appearing for the 3[rd] respondent and the additional respondent impleaded in the appeal, adopted the arguments of the petitioner. The additional respondent, the WA 23 & 176 of 2023 11 Cochin Port Authority, was specifically impleaded, on our orders, to ascertain the ownership of the land and the nature of possession of such land by the 3[rd] respondent. This has been clarified by way of an affidavit filed by the 3[rd] respondent producing the lease deed between the additional respondent and the 3[rd] respondent; Ext. R4(a). Learned Counsel would further stress on the clear distinction and different definitions of the terms, 'the employer' and 'the establishment' under the Headload Workers Act. The establishments to which the Act is applicable and the specific activity of loading and unloading work have been referred to in the Schedule to the Act. Definitely the 4[th] respondent establishment would come under item No.5 of the Schedule; if the exemption was not available. 7. Exts.P1, P2 and P3 were extensively read over to us, with reference to the statutory provisions. Ext.P1 is the notification issued by the Commissioner of Customs under Section 8(b) of the Customs Act, 1962. By the above provision, the Commissioner of Customs is empowered to specify the limits of any 'customs area', which term is defined under Section 2(11) as the area of a customs station and includes any area in which imported goods or goods 12 WA 23 & 176 of 2023 for export are ordinarily kept before clearance by Customs Authorities. By Ext.P1, the tabled area having an extent of 6.58 acres has been approved to be a proper place for storage of containers, imported goods, de-stuffing of containers, customs examination before clearance, storage examination and stuffing of export cargo into containers and storage of import and export transit containers; under Section 8(b). The boundaries and limits of the land more fully described in the Table appended, has been notified as a 'customs area'. Ext.P2 is yet another notification brought out under Section 45 of the Customs Act which specifically speaks of restrictions on custody and removal of imported goods. As per sub-section (1) of Section 45, all imported goods unloaded in a customs area are to be retained in the custody of such person as may be approved by the Commissioner of Customs until they are cleared for home consumption or are warehoused or transshipped. Sub section (2) mandates that a person having custody of any imported goods in a customs area, should keep a record of such goods and send a copy thereof to the proper officer; and is also prohibited from permitting removal or otherwise dealing with such goods; other than in accordance with WA 23 & 176 of 2023 13 the permission in writing from the proper officer. Sub section (3) makes such person in charge of imported goods in a customs area, liable to payment of duty if such goods are pilfered from their custody. The rigor of the statutory provisions are further reflected in clauses 4 6, 7 and 14 of Ext.P2. Clause 18 requires the Custodian to bear the cost of Customs Officers on cost recovery basis and clause 22 prohibits the Custodian from making any manner of alienation of the premises of a Customs Area without the written permission of the Commissioner of Customs. Ext.P3 details the procedure to be followed in respect of import, export and transshipment of cargo and the movement of containers into and out of the CFS, again issued by the Commissioner. At the outset, Ext.P3 requires the Custodian to observe all Central Government holidays and Sundays as followed in the Customs House. Clause 16 requires any deviation of the procedures listed out from clause 1 to 15 to be immediately brought to the notice of higher authorities and further provides that the staff posted at the CFS shall be under the direct control of the Assistant/Deputy Commissioner (Docks/CFS). We are convinced that the notification issued under Ext.P1 specifying the limits of the area WA 23 & 176 of 2023 14 leased out by the 3rd respondent from the Port Authority as per Ext.R4(a) for the purpose of the CFS, is notified as a customs area and is under the all pervasive control of the customs authorities. The notification which brought in the Headload Workers Act makes the provisions of the Act applicable to the establishments in the whole of the State of Kerala except those establishments owned and controlled by the Central Government. We have found that there is all pervasive control by the Customs Department on the activities carried on by the 3[rd] respondent in the premises leased out from the Port authority, and monitored and supervised by the Officers of the Customs. 8. **Hindustan Latex Employees Welfare Society** (supra), is a case in which the Society had an agreement to carry out secondary packaging of the company's products at various places, taken on lease by the Society, as well as in the factory premises. The writ petition was one filed for police protection for reason of the obstruction caused by the headload workers in the Scheme covered area. It was held that merely because the activity was carried on by a Society it does not seize to be an activity of the manufacturing establishment, under the control of the Central WA 23 & 176 of 2023 15 Government. The exclusionary part of the notification, according to the Division Bench, was with the object of freeing the activities carried on in an establishment of the Central Government from the trammels of the law of headload work, prevalent in the State of Kerala. Their Lordships clearly noticed the distinctive terms of 'establishment' and 'employer', as defined in the statute, the former of which term is used in the notification for the purpose of exemption. The work done by the Society, of secondary packing, was held to be part and parcel of the manufacturing unit, which was admittedly owned by the Central Government. Their Lordships also found the mere application for registration under the Act or the Rules and the employment of the Pool workers in a scheme area for some of its units, would not result in an absolute waiver of the right to employ its own workers; as such a right arise from the exemption permitted in the notification itself. In **APM Terminals India PVT. LTD** (supra), the issue again was with respect to an identical situation of a CFS having engaged Pool workers, but abruptly stopped the practice and started employing their own workers when obstructions were caused. The contention raised in the above writ petition was that the area being a customs WA 23 & 176 of 2023 16 bonded area, declared as a special economic zone, special rights are available to the operators within the area and entry into such area, even of the headload workers can only be with prior permission. Their Lordships held that the petitioners would be entitled to employ workers of their choice and even members of the Pool so far as the permission exists. The Unions were also permitted to avail the remedy under the competent authority 9. As submitted by the learned counsel for the petitioner, in **APM Terminals India PVT. LTD** (supra), the specific exemption applicable was not urged before Court. Section 2(m) defines a headload worker as a person employed directly or indirectly through a contractor in an establishment; with specific activities of loading and unloading. The definition of employer in S.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'; the definition of which term has already been noticed by us; quite distinct from that of 'the employer'. As far as WA 23 & 176 of 2023 17 sub-clause (ii) is concerned, the employer is the Committee appointed under S.18. The Explanation to the definition clause further makes it clear that the headload 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. The dispute resolution measure of conciliation as provided under S.21 of the Act has application only in disputes arising between the employer & the employee or the employees & employees or between employers; all with reference to the terms and conditions of employment. The dispute that can be considered can also be between the employer, the workers holding a valid registration under Rule 26A of the Rules of 1981 and those Pool members who have a registration under the Rule 6A of the Scheme of 1983. But, when there is an exemption to an establishment which is either owned and controlled by the Central Government there is no question of the authorities under the Act having any jurisdiction to entertain a complaint regarding the loading and unloading work carried on in such notified area; which stands exempted. WA 23 & 176 of 2023 18 10. The is to the exemption specifically granted establishment and we need not go to the constitution or legal status of the petitioner or the 3[rd] respondent. An establishment is defined under the Headload Workers Act by S.2(j) as an establishment specified in the Schedule and includes the precincts thereof. The Schedule appended to the Act specifies the establishments to which the Act is applicable. Though the activity carried on within the precincts of CFS is one coming under item No.5 of the Schedule, the exemption granted in the notification makes the Act itself inapplicable to such establishment. The establishment is defined as per the activities carried on within its precincts, which in the present case is storage, stuffing, de-stuffing and so on and so forth of goods either imported into the country or to be exported out of the country, on which customs duty is assessed, as payable or exempted; which activity is under the all pervasive control of the Customs department. The CFS carried on by the 3[rd] respondent, as a duly notified Custodian, is fully under the control of the Customs department and the premises being within a Scheme covered area does not alter the exemption granted from the Headload Workers Act to the activities of the WA 23 & 176 of 2023 19 establishment carried on within the precincts thereof. We bow to the dictum in **Hindustan Latex Employees Welfare Society** (supra) which we follow, to find exemption to the CFS area notified as per Ext.P1, though carried on by the 3[rd] respondent as Custodian, to be exempted from the Headload Workers Act, Rules and the Scheme, for reason of the all pervasive control exercised by the customs authority over the entire activities including loading and unloading activity. That the petitioner and 3[rd] respondent are private establishments earning profit out of their commercial activities, does not permit a deviation insofar as the in-applicability of the Headload Workers Act for the specific activities of the establishment carried on in the area within its precincts, notified as CFS under Section 8(b) of the Customs Act. 11. Even the petitioner admits that the Pool workers were employed for the loading and unloading work for a very long period. It is also pointed out that such engagement was in the interest of smooth functioning of the business, which otherwise was threatened to be obstructed by the Pool members who also had political patronage. Over course of time the Pool members became more belligerent and the complaints to the Committee WA 23 & 176 of 2023 20 and the Board evoked no response and it was in utter frustration that the petitioner resorted to engagement of their own workers, asserting the right of the exemption available to the establishments controlled by the Central Government. In **Hindustan Latex Employees Welfare Society** (supra), it was found that the engagement of pool workers or seeking registration under the Act and Rules would not result in a waiver of the rights accrued by virtue of the exemption. The Division Bench, therein noticed that such engagement was only for a short period, which in the present case was for over a decade. Even such engagement for long duration would not result in any crystallization of rights on the workers, who are members of the Pool constituted under a Scheme, framed under the Act. The exclusive right to carry out the loading and unloading work in a scheme covered area in the establishments within such area, is a statutory right which either exists or does not exist, on the terms of the statute. When such right does not flow from the statute, the mere practice of engaging Pool workers would not by that alone crystallize into a right to those previously engaged. WA 23 & 176 of 2023 21 12. We are also not impressed with the argument addressed by the Unions that the learned Single Judge has exceeded the jurisdiction to declare the Unions to have no right to obstruct the loading and unloading activity carried on within the premises of the 3[rd] respondent. We have already found that when an establishment is exempted from the enactment, there is no question of the authorities constituted under the enactment having any power to resolve disputes arising within such establishments. The writ petition though styled as one for police protection, essentially seeks the issuance of mandamus to the police, an authority under the State, who are obliged to act on the complaint of illegal obstruction raised before them. A writ of mandamus would only issue when there is an inaction on the part of the authority, who are bound to act in accordance with law, which inaction can only be found on the obstruction being declared to be illegal. The petitioner stopped engaging the members of the Pool under the Scheme for the loading and unloading work carried on in the 3[rd] respondent establishment and employed their own workers. This resulted in the obstruction to the loading and unloading work in the 3[rd] respondent 22 WA 23 & 176 of 2023 establishment by the Pool members claiming a right under the Headload Workers Act. When it is found that there is no right, flowing from the statute, on the Pool workers to demand loading and unloading work in the precincts of the 3[rd] respondent's establishment, controlled by the Central Government; necessarily the consequence is a declaration that the obstruction is illegal which is the foundation for the writ of mandamus issued to the police to afford necessary police protection. We find absolutely no reason to interfere with the judgment of the learned Single Judge. We affirm the same and dismiss the appeals. Sd/- ## **K.VINOD CHANDRAN, JUDGE** **Sd/-** ## **C.JAYACHANDRAN, JUDGE** Mrcs xxx WA 23 & 176 of 2023 23 ## **APPENDIX OF WA 23/2023** RESPONDENT ANNEXURES Annexure R4(a) A TRUE COPY OF THE LEASE DEED DATED 15.03.2011 Annexure R4(b) . A TRUE COPY OF THE HANDLING OF CARGO IN CUSTOMS AREAS REGULATIONS, 2009, NOTIFIED ON 17.03.2009, AND AS AMENDED