Allowed

Sunny Varghese v. Assistant Labour Officer

Kerala HC3 Jan 2022WP(C)/19841/2019

Case brief

AI extract

What is this about?

The Kerala High Court held that permanent employees of an establishment located in a scheme-covered area can register as headload workers under Rule 26A of the Kerala Headload Workers Rules, 1981. The Court ruled that the Welfare Board's objection and concerns about prejudicing pool workers are not valid legal grounds for denial, as the Act applies statewide and registration depends on willingness

What did the court decide?

Impugned orders setting aside; direction to the first respondent to register the petitioners as headload workers and issue identity cards within thirty days.

Sunny Varghese Vs Assistant Labour Officer — Pension and Retirement Benefits | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

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MONDAY, THE 3^RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943

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WP(C) NO. 19841 OF 2019

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PETITIONERS:

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1 SUNNY VARGHESE HEAD LOAD WORKER,STEEL WORLD, XVII/1-E, AIRPORT ROAD, MATTOOR, KALADY-683574.

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2 JOHNSON V.P., HEAD LOAD WORKER, STEEL WORLD, XVII/1-E, AIRPORT ROAD, MATTOOR, KALADY-683574. 3 STAIJAN U.D, HEAD LOAD WORKER, STEEL WORLD, XVII/1-E, AIRPORT ROAD, MATTOOR, KALADY-683574.

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4 ANTU P.D, HEAD LOAD WORKER, STEEL WORLD, XVII/1-E, AIRPORT ROAD, MATTOOR, KALADY-683574.

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5 JINO JOSE, HEAD LOAD WORKER, STEEL WORLD, XVII/1-E, AIRPORT ROAD, MATTOOR, KALADY-683574.

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6 MARTIN C.A, HEAD LOAD WORKER, STEEL WORLD, XVII/1-E, AIRPORT ROAD, MATTOOR, KALADY-683574.

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7 SIVAN P.A, HEAD LOAD WORKER, STEEL WORLD, XVII/1-E, AIRPORT ROAD, MATTOOR, KALADY-683574.

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BY ADVS. SRI.NIRMAL V NAIR

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W.P.(C) Nos.19841 & 19896/19

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SRI.AKHIL ALPHONSE G.

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RESPONDENTS:

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1 ASSISTANT LABOUR OFFICER OFFICE OF THE ASSISTANT LABOUR OFFICER, ANGAMALY-683572.

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*2 DISTRICT LABOUR OFFICER, DISTRICT LABOUR OFFICE, KAKKANAD-682030. 3 P.V ANTONY, MANAGING PARTNER,STEEL WORLD, XVII/1-E, AIRPORT ROAD, MATTOOR, KALADY-683574. 4 KERALA HEAD LOAD WORKERS WELFARE FUND BOARD ANGAMALY SUB OFFICE, ANGAMALY - 683572.

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***(ADDL.R4 IS IMPLEADED AS PER ORDER DATED 30.08.2019 IN I.A. No.1/2019). BY ADVS. R1 & R2 BY SMT.SABEENA P.ISMAIL, GOVERNMENT PLEADER R4 BY SRI.S.KRISHNAMOORTHY, SC, KTU R3 BY SRI.ANEESH JAMES SRI.JIJO THOMAS SMT.M.D.BEENA**

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2021, ALONG WITH WP(C)NO.19896/2019, THE COURT ON 03.01.2022 DELIVERED THE FOLLOWING:

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W.P.(C) Nos.19841 & 19896/19

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

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MONDAY, THE 3^RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943

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WP(C) NO. 19896 OF 2019

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PETITIONER:

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P.V ANTONY

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MANAGING PARTNER, STEEL WORLD, XVII/1-E AIRPORT ROAD, MATTOOR, KALADY - 683574.

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BY ADVS. SRI.ANEESH JAMES SRI.JIJO THOMAS SMT.M.D.BEENA

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RESPONDENTS:

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1 DISTRICT LABOUR OFFICER DISTRICT LABOUR OFFICE, KAKKANAD - 682030.

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2 KERALA HEADLOAD WORKERS WELFARE FUND BOARD ANGAMALY SUB OFFICE, ANGAMALY - 683572.

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3 ASSISTANT LABOUR OFFICER OFFICE OF THE ASSISTANT LABOUR OFFICER, ANGAMALY - 683572.

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4 SUNNY VARGHESE HEAD LOAD WORKER, STEEL WORLD, XVII/1-E, AIRPORT ROAD, MATTOOR, KALADY - 683574.

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5 JOHNSON V.P.

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W.P.(C) Nos.19841 & 19896/19

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HEAD LOAD WORKER, STEEL WORLD, XVII/1-E, AIRPORT ROAD, MATTOOR, KALADY - 683574.

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6 STAIJAN U.D. HEAD LOAD WORKER, STEEL WORLD, XVII/1-E, AIRPORT ROAD, MATTOOR, KALADY - 683574.

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7 ANTU P.D. HEAD LOAD WORKER, STEEL WORLD, XVII/1-E, AIRPORT ROAD, MATTOOR, KALADY - 683574.

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8 JINO JOSE HEAD LOAD WORKER, STEEL WORLD, XVII/1-E, AIRPORT ROAD, MATTOOR, KALADY - 683574.

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9 MARTIN C.A. HEAD LOAD WORKER, STEEL WORLD, XVII/1-E, AIRPORT ROAD, MATTOOR, KALADY - 683574.

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10 SIVAN P.A. HEAD LOAD WORKER, STEEL WORLD, XVII/1-E, AIRPORT ROAD, MATTOOR, KALADY - 683574.

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BY ADVS. SRI.S.KRISHNA MOORTHY, SC, KHWWB SRI.NIRMAL V NAIR SHRI.AKHIL ALPHONSE G.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.12.2021, ALONG WITH WP(C)NO.19841/2019, THE COURT ON 03.01.2022 DELIVERED THE FOLLOWING:

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W.P.(C) Nos.19841 & 19896/19

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“C.R.”

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BECHU KURIAN THOMAS, J.

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W.P.(C) Nos.19841 & 19896 of 2019

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----------------------------------------------------- Dated this the 3^rd day of January, 2022

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JUDGMENT

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The dispute on registration of permanent employees of an establishment as headload workers, in areas covered by the scheme, notified under the Kerala Headload Workers Rules, 1981 once again arises for deliberation of this Court, through these two cases.

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The permanent employees of an establishment have approached this Court challenging the orders rejecting their applications for registration as headload workers. The employer has filed another writ petition challenging the very same orders rejecting his employees' applications for registration as headload workers. Both these writ petitions are considered and disposed of by this judgment.

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W.P.(C) No.19841 of 2019 is filed by seven employees of an establishment belonging to the third respondent in the writ petition, while W.P.(C) No.19896 of 2019 is filed by the employer. W.P.(C) No.19841 of 2019 is treated as the leading case and hence the facts of the said case alone are narrated.

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W.P.(C) Nos.19841 & 19896/19

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Petitioners claim to be employed as permanent loading and unloading workers under the third respondent, who carries on the business of sale of sanitary wares, hard wares and other products under the name ‘Steel World’. Petitioners applied to the first respondent on 20.01.2018 for registration as headload workers and for issuance of identity cards under the Kerala Headload Workers Act, 1978 (for short, 'the Act') and Kerala Headload Workers Rules, 1981 (for short 'the Rules'). Pursuant to directions from this Court, in W.P.(C) No.7605 of 2018, the first respondent issued Ext.P1 order rejecting petitioners' applications. The applications were rejected, stating that the establishment of the employer is situated in a scheme covered area and the Kerala Headload Workers Welfare Board (for short 'the Board') had objected to the grant of registration and further that there was no satisfactory material to show that the workers are employed as headload workers in the establishment of the third respondent.

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In the appeal preferred by the petitioners, the second respondent by its order dated 25.03.2019 rejected the appeal, practically reiterating the order of the original authority. In the appellate order, it was stated that, the petitioners were not engaged in the works of the establishment and that the existing registered workers of the pool would be prejudiced since there were only limited opportunities for the existing workers to do the

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W.P.(C) Nos.19841 & 19896/19

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headload work and that the Board had agreed that the establishment shall supply the required headload workers on payment of the charges fixed in accordance with law.

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The aforementioned two orders are impugned in these writ petitions. Sri. Nirmal V.Nair, learned counsel for the petitioners contended that rejection of the petitioners' applications was perverse warranting interference by this Court under Article 226 of the Constitution. Learned counsel further submitted that the reasoning of the first and second respondents was patently incorrect apart from being unsustainable. The learned counsel relied upon the decision in Raghavan v. Superintendent of Police (1998 (2) KLT 732) Rajeev v. District Labour Officer (2010 (4) KLT 783) as well as in Manzoor v. District Labour Officer (2021 (5) KLT 554) and submitted that the reasoning adopted by respondents 1 and 2 were legally unsustainable and not sufficient to reject the applications. Adv. Aneesh James appearing for the employer supported the arguments of the petitioner.

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Smt.Sabeena P. Ismail, the learned Government Pleader and Sri.S.Krishnamoorthy, learned Standing Counsel for the Headload Workers Welfare Fund Board, on the other hand, submitted that the impugned orders do not warrant any interference since the objection of the Board was specifically raised in the instant case. According to the

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W.P.(C) Nos.19841 & 19896/19

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learned Standing Counsel, other things remaining the same, when the Welfare Board objects to the registration, the assessing officers cannot grant registration. Learned Standing Counsel further invited the attention of this Court to various statutory provisions in the Act, the Rules and the scheme to fortify his submission that when the Board is willing to supply the workers registered under it, the establishment cannot register its own permanent workers as headload workers since the displacement of one worker from the pool by another permanent worker of the management is not contemplated under the Act. The decision in Sureshkumar v. District Labour Officer (2021 (2) KLT 313) was also relied upon.

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I have considered the rival contentions. Petitioners are challenging the orders rejecting their applications for registration as headload workers in the establishment of the third respondent. As mentioned earlier, the registering authority, as well as the Appellate Authority, rejected the applications filed by the seven petitioners for registration as headload workers under Rule 26A of the Rules for the reason that the Board had objected to the grant of registration, that the need of the employer can be met through the headload workers from the pool and also that there was no evidence to prove that the workers who seek registration have worked as headload workers.

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Vehement and persuasive contentions were raised by

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W.P.(C) Nos.19841 & 19896/19

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Adv.Krishnamoorthy and invited this Court’s attention to the scheme formulated under section 13 of the Act, Rule 26A of the Rules and clause 6A of the Scheme. Despite the persuasive arguments of the learned Counsel, this Court is unable to accept the contention that when an establishment falls in an area covered by the scheme and when there are existing registered headload workers attached to the pool, the establishment cannot seek to obtain registration of headload workers for its employees. The aforementioned contention is rejected for the following reasons:

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9.1. In the Full Bench judgment in Raghavan v. Superintendent of Police (1998 (2) KLT 732) after concluding that the scheme is inapplicable to the headload workers employed in an establishment, it was observed as follows: “ The registration contemplated by the Scheme is not applicable to permanent headload workers employed in an establishment either directly by the employer or through a contractor. But that does not mean that such permanent workers cannot get registered as per the provisions contained under R. 26 A. As mentioned earlier, the Act and the Rules are made applicable for the whole of the State and the requirement of registration under R. 26A is effective throughout the State whether it is an area to which the Scheme is made applicable or not. Therefore, all headload workers whether permanently employed in an establishment or

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W.P.(C) Nos.19841 & 19896/19

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not are to get registration under R. 26A” . The inevitable corollary of the above observations is that the permanent employees of an establishment can apply for and obtain registration as headload workers, even in areas covered by the scheme.

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9.2. Apart from the above, there is no provision either in the Act or the Rules or in the scheme which can even indirectly indicate that once an area is covered under the scheme, no new worker can be registered as headload workers who are the permanent employees of an establishment.

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9.3. 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. Apart from the Full Bench decision in Raghavan’s case, the decisions in 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 applications 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 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

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W.P.(C) Nos.19841 & 19896/19

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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, in this context.

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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 contention raised by the learned Standing Counsel is thus bereft of any merit and there is no statutory provision to justify such an argument. Therefore, a permanent worker, engaged by an employer of an establishment situated in areas covered by the scheme, can register himself as a headload worker under Rule 26A of the Rules.

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Further, 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 under Article 19(6) of the Constitution. The work of loading and unloading is not a work that requires any specialised

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W.P.(C) Nos.19841 & 19896/19

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experience or technical or educational qualification. 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 a 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 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 the employer's consent is sufficient to grant registration.

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Adv.Krishnamoorthy relied heavily upon the decision of the Full Bench in Sureshkumar v. District Labour Officer (2021 (2) KLT 313) and canvassed that registration cannot be granted to the employees of the establishments in the scheme covered areas and if the establishments wanted, they can seek the assistance of the workers attached to the pool.

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W.P.(C) Nos.19841 & 19896/19

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I am afraid the contention cannot be accepted. The decision in Sureshkumar’s case was considering the question 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. Merely because the existing cardholders have a right of appeal, it does not mean that registration cannot be granted to the permanent employees. The right to obtain registration and the right to appeal against the grant of registration are two different facets. 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.

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When the employees of the petitioner in W.P.(C) No.19896 of 2019 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, are not valid reasons in the eye of law. The reduction of income or job opportunities for existing headload workers is not a ground under law for denying registration to

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W.P.(C) Nos.19841 & 19896/19

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workers who are willing to do loading and unloading works in an establishment that falls under areas covered by the scheme.

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In view of the above considerations, this Court is of the opinion that the impugned orders, Ext.P1 and Ext.P2 in W.P.(C) No.19841 of 2019, which are the same as Ext.P1 and Ext.P3 respectively in W.P.(C) No.19896 of 2019, are set aside. There will be a direction to the first respondent to grant registration to the petitioners in W.P.(C) No.19841 of 2019 as headload workers attached to the third respondent and issue identity cards to the petitioners, as contemplated under Rule 26A of the Kerala Headload Workers Rules, 1981, in a time-bound manner, within a period of thirty days from the date of receipt of a copy of this judgment.

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The writ petitions are allowed as above.

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Sd/-

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BECHU KURIAN THOMAS JUDGE

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vps

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W.P.(C) Nos.19841 & 19896/19

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PETITIONER'S/S' EXHIBITS

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EXHIBIT P1 PHOTOCOPY OF THE ORDER DATED 03.05.2018 PASSED BY THE 1ST RESPONDENT. EXHIBIT P2 PHOTOCOPY OF THE ORDER DATED 25.03.2019 PASSED BY THE 2ND RESPONDENT.

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EXHIBIT P3 PHOTOCOPY OF THE FORM VI DOCUMENT OF THE 1ST PETITIONER PRODUCED BEFORE THE 2ND RESPONDENT.

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EXHIBIT P3(a) PHOTOCOPY OF THE FORM VI DOCUMENT OF THE 2ND PETITIONER PRODUCED BEFORE THE 2ND RESPONDENT. EXHIBIT P3(b) PHOTOCOPY OF THE FORM VI DOCUMENT OF THE 3RD PETITIONER PRODUCED BEFORE THE 2ND RESPONDENT. EXHIBIT P3(c) PHOTOCOPY OF THE FORM VI DOCUMENT OF THE 4TH PETITIONER PRODUCED BEFORE THE 2ND RESPONDENT.

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EXHIBIT P3(d) PHOTOCOPY OF THE FORM VI DOCUMENT OF THE 5TH PETITIONER PRODUCED BEFORE THE 2ND RESPONDENT.

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EXHIBIT P3(e) PHOTOCOPY OF THE FORM VI DOCUMENT OF THE 6TH PETITIONER PRODUCED BEFORE THE 2ND RESPONDENT.

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EXHIBIT P3(f) PHOTOCOPY OF THE FORM VI DOCUMENT OF THE 7TH PETITIONER PRODUCED BEFORE THE 2ND RESPONDENT.

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W.P.(C) Nos.19841 & 19896/19

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PETITIONER'S/S' EXHIBITS EXHIBIT P1 PHOTOCOPY OF ORDER DATED 03.05.2018 PASSED BY THE 1ST RESPONDENT AND ITS ENGLISH TRANSLATION. EXHIBIT P2 PHOTOCOPY OF THE STATEMENT FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P3 PHOTOCOPY OF ORDER DATED 25.03.2019 ISSUED BY THE 2ND RESPONDENT AND ITS ENGLISH TRANSLATION. EXHIBIT P4 PHOTOCOPY OF THE LETTER DATED 12.04.2019 BY THE PETITIONER TO THE 2ND RESPONDENT.

Sunny Varghese v. Assistant Labour Officer

Case brief

What is this about?

What did the court decide?

Sunny Varghese v. Assistant Labour Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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