Allowed

Darly Sebastian @ Darly Tony v. the District Labour Officer

Kerala HC23 Mar 2022WP(C)/6472/2022

Case brief

AI extract

What is this about?

The court set aside the impugned orders rejecting applications for headload worker registration. It held that rejecting applications to protect existing workers' livelihood violates Article 19(1)(g), stating that registration is merely a declaration of willingness to work, and remitted the matter for issuing cards within one month.

What did the court decide?

Impugned orders of Assistant Labour Officer and District Labour Officer set aside; petitioners directed to be registered and issued worker cards within one month.

Darly Sebastian @ Darly Tony Vs the District Labour… — Service and Employment | 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 AMIT RAWAL

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WEDNESDAY, THE 23RD DAY OF MARCH 2022 / 2ND CHAITHRA, 1944

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WP(C) NO. 6472 OF 2022

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PETITIONER:

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1 DARLY SEBASTIAN @ DARLY TONY, AGED 38 YEARS,

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D/O.P.S.SEBASTIAN, PROPRIETOR, TEEKOY CEMENTS,
VAGAMON ROAD, MES JUNCTION, ERATTUPETTA,
REPRESENTED BY HER FATHER AND POWER OF ATTORNEY HOLDER-
P.S.SEBASTIAN, S/O.SEBASTIAN, AGED 74 YEARS,
PAMPLANIYIL HOUSE, TEEKOY.P.O,

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TEEKOY VILLAGE, ERATTUPETTA,
KOTTAYAM DISTRICT,PIN-686580.

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2 ADBDUL RASID,

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HEADLOAD WORKER, TEEKOY CEMENTS (ERATTUPETTA BRANCH),
20/1482-A1 PAMPLANIYIL BUILDING, NEAR MES JUNCTION,
ERATTUPETTA,
PIN-686121.

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3AMIRUL HAQUE,
HEADLOAD WORKER, TEEKOY CEMENTS(ERATTUPETTA BRANCH),
20/1482-A1 PAMPLANIYIL BUILDING, NEAR MES JUNCTION,
ERATTUPETTA, PIN-686121.

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4 HABIBUR RAHMAN,

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HEADLOAD WORKER, TEEKOY CEMENTS(ERATTUPETTA BRANCH),
20/1482-A1 PAMPLANIYIL BUILDING, NEAR MES JUNCTION,
ERATUPETTA, PIN-686121.

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5 JIJAABUR RAHMAN,

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HEADLOAD WORKER,TEEKOY CEMENTS(ERATTUPETTA BRANCH),
20/1481-A1 PAMPLANIYIL BUILDING, NEAR MES JUNCTION,
ERATTUPETTA, PIN-686121.

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6 JAKIR HUSSEN,

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HEADLOAD WORKER,TEEKOY CEMENTS(ERATTUPETTA BRANCH),
20/1481-A1 PAMPLANIYIL BUILDING, NEAR MES JUNCTION,
ERATTUPETTA, PIN-686121.

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BY ADVS.
GEORGE SEBASTIAN
RAJEE P MATHEWS

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WP(C) NO. 6472 OF 2022

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RESPONDENTS:

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1 THE DISTRICT LABOUR OFFICER, OFFICE OF THE DISTRICT LABOUR OFFICER, COLLECTORATE BUILDING, K K ROAD, KOTTAYAM-KUMILY ROAD, COLLECTORATE, KOTTAYAM, KERALA-686002.

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2 THE ASSISTANT LABOUR OFFICER, MINI CIVIL STATION, PALA, KOTTAYAM DISTRICT,KERALA-686575.

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3 THE KERALA HEADLOAD WORKERS WELFARE BOARD, ERATTUPETTA UNIT, ERATTUPETTTA SUB OFFICE, ERATTUPETTA, REPRESENTED BY ITS CHAIRMAN, PIN-686121.

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BY ADV SRI.S.KRISHNA MOORTHY, SC, KHWWB
 SRI.JUSTIN JACOB, SR.GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.03.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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WP(C) NO. 6472 OF 2022

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JUDGMENT

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First petitioner is the proprietor of the concern running the firm under the name and style 'Teekoy Cements' at Erattupetta. Petitioner Nos.2 and 6 are the employees of the concern. First petitioner has already obtained a licence from the concerned Municipality dated 20.12.2021 for running the concern Ext.P1 and also registration certificate dated 03.05.2021 under the Kerala Shops and Commercial Establishments Act Ext.P2. Applications on behalf of the petitioner Nos.2 to 6 were filed under the provisions of Rule 26A of Kerala Headload Workers Rules, 1981 before the Assistant Labour Officer, Pala, Kottayam District, Exts.P3, P4, P5, P6 and P7 respectively. Respondent No.2 conducted an enquiry wherein the petitioner No.1 and the representative of respondent No.3 i.e., the Kerala Headload Workers Welfare Board were heard, but for the reasons best known the applications were rejected. Since the order aforementioned was appealable, appeal was preferred

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WP(C) NO. 6472 OF 2022

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which also resulted into dismissal vide order dated 30.12.2021 Ext.P10.

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Learned counsel appearing on behalf of the petitioners submitted that the impugned orders Exts.P8 and P10 are passed in utter violation of the principles laid down in the judgments Exts.P11, P12 and P13 of this Court by holding that there is no provision in the Kerala Headload Workers Act. In the area which is covered under the scheme no new headload workers can be registered. It is well settled that when an application for registration is considered, the registering authority is not required to go into the aforementioned intricacies. Even the third respondent had no right to oppose the application for registration on account of the fact that it may affect the income and livelihood of the existing registered employees.

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Mr.Justin Jacob, learned Senior Government Pleader appearing on behalf of the State do not deny the judgments and so did Mr.D.Balagopal.

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WP(C) NO. 6472 OF 2022

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I have heard learned counsel for the parties and appraised the paper book.

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It is settled law that every person has the fundamental rights under Article 19(1)(g) of the Constitution of India to carry any occupation. The same can be subjected to only reasonable restrictions as per the provisions of Article 19(6). The work of loading and unloading is not a work that requires any specialised skill or experience, technical or educational qualifications. Any person who is willing to do such work have a freedom to do the same. The reasoning assigned by the authorities cannot escape the scrutiny of this court and are required to be thus extracted hereinbelow:

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Ext.P8:

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“........ In enquiry, it is understood that the employees of the establishment are not only doing head load work, but also working in other establishments of the employer, for their sustenance. Likewise, the area where the establishment is being functioned, is an area where the workers attached to the Kerala head load workers board are working on a permanent basis.

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WP(C) NO. 6472 OF 2022

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In the above circumstances, if the cards are issued to the applicants, it will seriously affect the livelihood of the registered head load workers of the area and the functioning of the headload workers welfare board and therefore the applications for registration as per references 2 to 6 are hereby rejected.

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If there is any grievance with respect to this order, an appeal can be filed before District Labour Officer (general), Kottayam within the prescribed time.”

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Ext.P10:

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“......... The Kerala Headload Workers Act 1978 and Rules 1981 are in existence for the work regulation and welfare of the headload workers. Even though the employer claims that the employees of Teekoy cements are engaged in headload work for the last 13years, those employers were not registered as per headload workers Act. It is seen that they are engaged in other works in the other concerns of the employer. Therefore the argument that those persons have to be registered as headload workers after treating them as headload workers cannot be accepted. If the loading and unloading work of Teekoy cements are done through head load workers of the welfare board, the five applicants will not loss any job. The appellant had the responsibility to register her own employees as per Rule 26A of the Kerala Headload Workers Rules and to ensure that her employees would get the welfare benefit.

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WP(C) NO. 6472 OF 2022

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Without doing so, applications were filed before Assistant Labour Officer only when it was realized that the works have to be given to the headload workers welfare board.

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In the above circumstances, in the appeal is rejected finding that the arguments of the appellant are not sustainable.”

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On cumulative reading of the aforementioned findings, it is evident that the respondents have not taken into consideration the provisions of the Constitution of India and have been miser in registration of workers which is against the dictum of the judgments relied upon in support of the contention. In the cited judgments not only the judgments on this issue have been referred to time and again but the directions have been issued that the impugned order rejecting the registration cannot be justified as it is wholly discriminatory, for, registration would only mean willingness of a worker to work. There is no legal justification for the authorities to reject the application by considering the fact that it would affect the other registered workers, as such findings would lead to a

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WP(C) NO. 6472 OF 2022

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very ambiguous and incongruous situation which cannot be envisioned in correct perspective.

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Resultantly, the impugned orders Exts.P8 and P10 are set aside. Writ petition is allowed. Direction is issued to the respondent Nos.2 to register petitioner Nos.2 to 6 by allowing their applications and issue them card within a period of one month from the date of receipt of a certified copy of the judgment.

AMIT RAWAL

JUDGE

WP(C) NO. 6472 OF 2022

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APPENDIX OF WP(C) 6472/2022

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PETITIONER EXHIBITS

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`Exhibit P1`	`A TRUE COPY OF THE` `20.12.2021 ISSUED` `MUNICIPALITY IN FA` `PETITIONER FOR RUN` `ENGLISH TRANSLATIO`	`LICENSE DATED` `FROM ERATTUPETTA` `VOUR OF THE 1ST` `NING HER CONERN WITH` `N.`
`Exhibit P2`	`A TRUE COPY OF THE` `CERTIFICATE DATED` `UNDER THE PROVISIO` `SHOPS AND COMMERCI` `ACT WITH ENGLISH T`	`REGISTRATION` `3.5.2021 ISSUED` `NS OF THE KERALA` `AL ESTABILSHMENTS` `RANSLATION.`
`Exhibit P3`	`A TRUE COPY OF THE` `5.6.2021 SUBMITTED` `PETITIONER BEFORE`	`APPLICATION DATED` `BY THE 2ND` `THE 2ND RESPONDENT.`
`Exhibit P4`	`A TRUE COPY OF THE` `5.6.2021 SUBMITTED` `PETITIONER BEFORE`	`APPLICATION DATED` `BY THE 3RD` `THE 2ND RESPONDENT`
`Exhibit P5`	`A TRUE COPY OF THE` `5.6.2021 SUBMITTED` `PETITIONER BEFORE`	`APPLICATION DATED` `BY THE 4TH` `THE 2ND RESPONDENT.`
`Exhibit P6`	`A TRUE COPY OF THE` `5.6.2021 SUBMITTED` `PETITIONER BEFORE`	`APPLICATION DATED` `BY THE 5TH` `THE 2ND RESPONDENT`
`Exhibit P7`	`A TRUE COPY OF THE` `4.6.2021 SUBMITTED` `PETITIONER BEFORE`	`APPLICATION DATED` `BY THE 6TH` `THE 2ND RESPONDENT`
`Exhibit P8`	`A TRUE COPY OF THE` `5.8.2021 PASSED BY` `WITH ENGLISH TRANS`	`ORDER DATED` `THE 2ND RESPONDENT` `LATION.`
`Exhibit P9`	`A TRUE COPY OF THE` `DATED 27.8.2017 SU` `PETITIONER BEFORE`	`APPEAL MEMORANDUM` `BMITTED BY THE 1ST` `THE 1ST RESPONDENT`

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WP(C) NO. 6472 OF 2022

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WITH ENGLISH TRANSLATION.

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`Exhibit P10`	`A TRUE COPY OF THE ORDER DATED` `30.12.2021 PASSED BY THE 1ST` `RESPONDENT WITH ENGLISH TRANSLATION.`
`Exhibit P11`	`A TRUE COPY OF THE JUDGMENT DATED` `3.1.2022 IN W.P.(C)N.198412019.`
`Exhibit P12`	`A TRUE COPY OF THE JUDGMENT DATED` `17.12.2021 IN W.P.(C)NO.9236/2021.`
`Exhibit P13`	`A TRUE COPY OF THE JUDGMENT DATED` `23.9.2021 IN W.P.(C)NO.27087/2020.`

Darly Sebastian @ Darly Tony v. the District Labour Officer

Case brief

What is this about?

What did the court decide?

Darly Sebastian @ Darly Tony v. the District Labour Officer

Case brief

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