Disposed

Raju Paul Scaria v. the District Police Chief

Kerala HC15 Feb 2024WP(C)/1752/2024

Case brief

AI extract

What is this about?

Property owner with valid building permit sought police protection after union workers obstructed his construction. Court held he had locus standi, that unregistered scattered workers could not obstruct lawful work, interdicted obstruction, and left workers free to seek redressal before authorities under the Building and Other Construction Workers Act, 1996.

What the court decided

AI extract

Raju Paul Scaria Vs the District Police Chief — Labour and Industrial Disputes | Kerala HC (2024)

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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 RAJA VIJAYARAGHAVAN V

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THURSDAY,THE15THDAYOFFEBRUARY2024/26THMAGHA,1945

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WP(C) NO. 1752 OF 2024

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PETITIONER:

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RAJUPAULSCARIA,AGED43YEARS,S/O.K.P.SCARIA,
KOLLAPILLILHOUSE,CHATHAMMA,PANANGADP.O.,
ERNAKULAMDISTRICT,PIN-682506

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BYADVS.BABUS.NAIR,SMITHABABU

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RESPONDENTS:

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1 THE DISTRICT POLICE CHIEF, KOCHI CITY, ERNAKULAM DISTRICT, PIN - 682005

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2 THE STATION HOUSE OFFICER, PANANGAD POLICE STATION, ERNAKULAM DISTRICT, PIN - 682506

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3 THE SECRETARY, CONSTRUCTION WORKERS UNION (INTUC) MADAVANA JUNCTION, PANANGAD P.O., ERNAKULAM DISTRICT, PIN - 682506

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4 THE SECRETARY, CONSTRUCTION WORKERS UNION (CITU), MADAVANA JUNCTION, PANANGAD P.O., ERNAKULAM DISTRICT, PIN - 682506

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5HARSHADAZHIKKAKATH,PRESIDENT,
SOCIALDEMOCRATICTRADEUNION,CONSTRUCTIONWORKERS
UNIT,TRIPUNITHURAAREACOMMITTEE.THRIPUNITHURA,
ERNAKULAMDISTRICT,PIN-682301

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BYADVS.P.K.IBRAHIM,
K.P.AMBIKA(A-656)
ZEENATHP.K.(K/001999/2023)
JABEENAK.M.(K/002008/2023)
ANAZBINIBRAHIM(K/2796/2023)

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SMTRASMITHOMAS,GOVERNMENTPLEADER

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THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION
ON15.02.2024,THECOURTONTHESAMEDAYDELIVEREDTHE
FOLLOWING:

W.P.C 1752 of 2024

JUDGMENT

The petitioner states that he is the absolute owner in title and possession of property falling in Sy. No.17/6-3, 17/7-5-2, and 17/7-6-2 of the Kumbalam village, Ernakulam. For the purpose of constructing a mercantile/commercial building in the aforesaid property, he approached the Kumbalam Grama Panchayat and secured Ext.P1 site approval and building permit. When the construction of the building commenced, the party respondents approached the petitioner and demanded that their union members be entrusted with the work. When the petitioner refused, the members of the union obstructed the work and threatened the workers engaged by the petitioner. In the said circumstances, the petitioner approached the 2nd respondent and lodged a complaint. However, no action was taken to enable the petitioner to continue with the construction. The petitioner contends that he has the right to employ skilled workmen of his choice, and the Trade Unions or their workers have no right to object. The petitioner refers to Ext.P4 information obtained under the Right to Information Act wherein the information officer in the office of the Assistant Labour Officer has stated that no individuals or unions have any right to demand or claim any employment under law in building construction

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W.P.C 1752 of 2024

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activities. It is on these assertions that this writ petition is filed seeking issuance of directions to respondents 1 and 2 to afford protection to the petitioner and his workmen to carry out construction work on the basis of Ext.P1 permit.

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In the counter affidavit dated 7.2.2024 filed by the 5th respondent, it is stated that the building construction under Ext.P1 permit is undertaken by a contractor by the name JVM Construction on a contract basis. The party respondents and 3 others were engaged by the construction company. While so, the 5th respondent and certain others who were formerly members of the INTUC and CITU resigned from the said union and joined another union. Immediately thereafter, they were denied employment as the Union leaders objected to the employment of the respondents. It is stated that when the contractor refused employment, the party respondents approached the police, who forwarded the complaint to the Deputy Labour Officer. Reference is made to Exts.R5(A) to (E), and it is submitted that conciliation talks were held, but the disputes could not be settled as the representative of the contractor boycotted the meeting. It is stated that the petitioner has no locus standi to approach this Court as the construction activities are being carried out by the contractor and not by the petitioner.

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W.P.C 1752 of 2024

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An additional counter was filed on 14.2.2024, wherein it is stated that under the provisions of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (‘Act of 1996’ for the sake of brevity), only a registered employer can engage building construction workers. As the petitioner is not a registered employer, he is not entitled to carry out the construction work on the strength of Ext.P1 permit. It is further stated that the provisions of the Act of 1996 have not been complied with.

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Sri. Babu S Nair, the learned counsel appearing for the petitioner, would point out that there is no provision of law which insists that the petitioner cannot employ skilled workers of his choice. According to the learned counsel, JVM Constructions is the concerned contractor engaged in carrying out the piling work of the building, as the same is a specialized work, requiring skilled workers. When piling work commenced, an objection was raised by the scattered workers of the area. The contractor had no other go but to employ some of the workers for unskilled work though he was not legally bound to engage such workers. The learned counsel would also submit that the provisions of Act of 1996, have no application in the facts of the instant case as the party respondents have no case that they are beneficiaries registered under Section 12 of the Act. It is further submitted

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W.P.C 1752 of 2024

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that the contention that the petitioner, being the owner of the property, cannot maintain the writ petition is baseless and unsustainable, and it is in the petitioner’s interest that the work is over as expeditiously as possible.

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In response, Sri P.K Ibrahim, the learned counsel appearing for the respondent, would point out that nowhere in the writ petition has the petitioner asserted that the construction activities are being carried out through a contractor. This aspect of the matter is conveniently suppressed by the petitioner. The learned counsel would refer to the documents produced before this Court, and it is submitted that attempts were made to settle the dispute between the contractor and the employees, but the same had failed due to the stubborn nature of the contractor as they walked out in the midst of the meeting. The learned counsel would refer to the definition of employer under Section 2(i), beneficiary under Section 2(b), building or other construction work under Section 2(d), and building worker under Section 2(e), and it is argued that only employer as defined under the Act can carry out the construction work only by a registered employer, where the cost of the construction exceeds Rs.10 lakhs. It is submitted that the petitioner, not being the employer, cannot intervene in a dispute between the contractor and the employer and seek police protection before this Court. It is finally submitted that if the construction workers entitled to the benevolent

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W.P.C 1752 of 2024

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provisions of the Act are not permitted to be a part of the construction work it may lead to gross injustice.

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I have carefully considered the submissions advanced, and I have gone through the records.

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I find that the petitioner herein had approached the local authority and secured Exhibit P1 site approval and building permit to carry out the construction of a mercantile/commercial building having an approximate area of 1143.96 sq meters. His grievance is that when he commenced the construction work of the building, the party respondents, who are union workers in the area, prevented the construction activities by taking the law into their own hands.

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The first contention of the learned counsel appearing for the respondent is that the petitioner is not entitled to maintain this writ petition. I am afraid that the said contention cannot be accepted. The work is being carried out on the property of the petitioner on the strength of Exhibit P1 permit, and if the same is obstructed, he is eminently entitled to approach this Court complaining of inaction by the police.

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The next contention is with regard to the application of the provisions of the Act of 1996. It is the contention of Sri. P.K Ibrahim, the learned counsel appearing for the party respondents that only a registered

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W.P.C 1752 of 2024

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employer can engage building construction workers, and the petitioner, not a registered employer, cannot undertake the construction work under Ext.P1 permit. Sri. Ibrahim also asserts that the fact that the construction activity is

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being carried out through a contractor is not divulged in the writ petition.

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Section 2(b) of the Act defines the term beneficiary, which reads

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as under:

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Section 2(b). "beneficiary" means a building worker registered under section 12;

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Section 2(e) deals with Building worker and the same reads as

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follows:

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Section 2(e) "building worker" means a person who is employed to do any skilled, semi-skilled or unskilled, manual, supervisory, technical, or clerical work for hire or reward, whether the terms of employment be expressed or implied, in connection with any building or other construction work but does not include any such person- (i) who is employed mainly in a managerial or administrative capacity; or (ii) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature;

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Section 12 of the Act speaks about the registration of

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beneficiaries. The said provision reads as under:

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Registration of building workers as beneficiaries.

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(1) Every building worker who has completed eighteen years of age, but has not completed sixty years of age, and who has been engaged in any building or other construction work for not less than ninety days during the preceding twelve months shall be eligible for registration as a beneficiary under this Act.

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W.P.C 1752 of 2024

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(2) An application for registration shall be made in such form, as may be prescribed, to the officer authorised by the Board in this behalf.

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(3) Every application under sub-section (2) shall be accompanied by such documents together with such fee not exceeding fifty rupees as may be prescribed.

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(4) If the officer authorised by the Board under sub-section (2) is satisfied that the applicant has complied with the provisions of this Act and the rules made thereunder, he shall register the name of the building worker as a beneficiary under this Act: Provided that an application for registration shall not be rejected without giving the applicant an opportunity of being heard.

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(5) Any person aggrieved by the decision under sub- section (4) may, within thirty days from the date of such decision, prefer an appeal to the Secretary of the Board or any other officer specified by the Board in this behalf and the decision of the Secretary or such other officer on such appeal shall be final: Provided that the Secretary or any other officer specified by the Board in this behalf may entertain the appeal after the expiry of the said period of thirty days if he is satisfied that the building worker was prevented by sufficient cause from filing the appeal in time.

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(6) The Secretary of the Board shall cause to maintain such registers as may be prescribed.

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Though in the writ petition, it is stated that the party respondents are construction workers, they have no case that they have secured registration under Section 12 of the Act or that they are holding an identity card under Section 13 of the Act. They also do not have a case that they are registered employees working under the contractor. Under Section 30 of the Act, every employer is bound to maintain such registers and records giving such particulars of the building workers engaged by him and other details. However, the party respondents are scattered workers and they

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W.P.C 1752 of 2024

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do not claim that they are registered beneficiaries working under the employer.

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Under Section 43 of the Act, powers have been conferred on Inspectors to enter any premises where building or construction work is going on and inspect the records and registers. Contravention of the provisions of the Act is a penal offense under Section 47 of the Act. Even the nondisclosure of the commencement of the construction of the building may invite imprisonment and fine.

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If the party respondents are beneficiaries under Section 12 of the Act, and they find themselves deprived of any entitlements or benefits as specified by various provisions within the Act, they have the prerogative to seek recourse by approaching the Inspector empowered to handle their grievances. This Inspector possesses the authority to initiate appropriate actions to address their grievances and facilitate redressal. Therefore, if the construction activity falls within the ambit of the Act and, if the employer is not a registered employer, or if the safeguards are not met, and these aspects are brought to the notice of the Inspector concerned, the said authority can initiate appropriate action including prosecution of the employer. If the party respondents are registered workers, they have the right to approach the employer concerned. The party respondents , however,

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W.P.C 1752 of 2024

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would not be justified in taking the law into their own hands and obstructing

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the construction activities carried out by the owner of the property.

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Resultantly, this writ petition is disposed of, interdicting the party respondents from causing any obstruction to the construction activities which are being carried out on the strength of Ext.P1 permit. If any obstruction is caused, it would be open to the petitioner to approach the 2nd respondent, who shall render effective assistance. It is made clear that it would be open

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to the party respondents to raise their grievances before the jurisdictional authority under the Act of 1996 and seek redressal.

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Sd/- RAJA VIJAYARAGHAVAN V JUDGE

IAP

W.P.C 1752 of 2024

APPENDIX OF WP(C) 1752/2024

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PETITIONER’S EXHIBITS:

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`Exhibit P1`	`A TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE` `SECRETARY, KUMBALAM GRAMA PANCHAYATH DATED,` `19-12-2023`
`Exhibit P2`	`A TRUE COPY OF THE COMPLAINT GIVEN BY THE` `PETITIONER BEFORE THE 2ND RESPONDENT DATED,` `4-1-2024`
`Exhibit P3`	`TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 5TH` `RESPONDENT TO THE 2ND RESPONDENT DATED, 4-1-2024`
`Exhibit P4`	`A TRUE COPY OF THE REPLY GIVEN BY THE PUBLIC` `INFORMATION OFFICER, OFFICE OF THE ASSISTANT LABOUR` `OFFICER, KOCHI DATED, 8-11-2022`
`RESPONDENTS’`	`EXHIBITS`
`Exhibit-R5(A)`	`TRUE COPY OF THE PROCEEDINGS RECORDED ON` `08.01.2024 IN THE MEETING`
`Exhibit-R5(B)`	`TRUE COPY OF THE SUBMISSION DATED 08.01.2024 OF` `THIS RESPONDENT BEFORE THE DISTRICT LABOUR` `OFFICER`
`Exhibit-R5(C)`	`TRUE COPY OF THE PROCEEDINGS RECORDED BY THE DLO` `ON 10.01.2024`
`Exhibit-R5(D)`	`TRUE COPY OF THE STATEMENT DATED 10.01.2024 OF` `MR. VENUGOPAL OF JVM CONSTRUCTIONS`
`Exhibit-R5(E)`	`TRUE COPY OF THE STATEMENT SUBMITTED BEFORE THE` `LABOUR OFFICE`
`Exhibit-R5(F)`	`TRUE COPY OF THE STATEMENT DATED 02.02.2024 OF` `THIS RESPONDENT AND 3 OTHERS`

Raju Paul Scaria v. the District Police Chief

Case brief

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What the court decided

Raju Paul Scaria v. the District Police Chief

Case brief

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