Headload Workers; Amma Granites & Tiles Vs. District Labour Officer [Kerala High Court, 05-08-2016]

Kerala Headload Workers Act, 1978 – Kerala Headload Workers Rules, 1981 – Kerala Headload Workers (Regulation and Employment) Scheme, 1983 –  What is the intent and purport of the Act? Was it enacted only for the welfare of the headload workers coming within the purview of the Act? Held, the predominant object of the Act is to afford social and legal protection to the headload workers and also to put in place the measures for their welfare. However, it can be seen from the very definition of “headload workers” itself that certain persons doing loading and unloading work by carrying load on head or person or otherwise, in certain situations, cannot be treated as headload workers covered by the Act. More precisely stated, a person engaged by an individual for domestic purposes, which has been explained in Explanation-I to Section 2(m) of the Act, shall not be regarded as a headload worker and therefore he cannot claim any benefit under the Act. Similarly, a person engaged for handling delicate or sophisticated articles, explained in Explanation-II to the above definition clause, is also excluded from the purview of the Act. Likewise, in an area where the Scheme is not made applicable, no provision of this Act or the Rules would compel an employer to engage a headload worker having registration under Rule 26 A of the Rules. In this context, the expression “to regulate” occurring in the Long Title and Preamble of the Act assumes importance. Oxford Thesaurus of English indicates that the word “regulate” may mean control, adjust, manage, balance, set, synchronize, modulate, tune, etc, depending on the context. According to us, in the context of this Act, the word “regulate” must be ascribed the meanings such as adjust, control, balance, modulate or synchronize. The provisions of the Act not only regulate the rights of the headload workers vis-a-vis the employers, but by excluding certain class of loading and unloading activities from the purview of the Act and also by insisting on the commencement of the functional operation of the Scheme in a particular area for the application of the Act and Rules, the public in general and certain employers engaged in certain business activities in particular are saved from the entanglements of the Act. The expression in the Long Title and Preamble of the Act, viz., “an Act to regulate the employment of Headload Workers” has a direct bearing on the rights of the public at large because the regulations will bring in certainty in the matters like quantum of wages payable to them and the details of activities excluded from the purview of the Act. Viewing from this angle, it can be stated that the Act confers benefit on certain persons other than the headload workers too. Point No.I therefore decided accordingly.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.T.SANKARAN & A.HARIPRASAD, JJ.

W.P.(C) Nos.17779 of 2016 (V) & 19566 of 2016 (U)

Dated this the 5th day of August, 2016

PETITIONER

AMMA GRANITES AND TILES REPRESENTED BY ITS MANAGING PARTNER, MR.LENIN P.P., NADAKKAVU, UDAYAMPEROOR, ERNAKULAM DISTRICT.

BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.MONISHA K.R.

RESPONDENTS

1. THE DISTRICT LABOUR OFFICER ERNAKULAM – 682 030.

2. THE ASSISTANT LABOUR OFFICER 1ST CIRCLE, ERNAKULAM – 682 030.

3. THE SUB INSPECTOR OF POLICE UDAYAMPEROOR – 682 307.

4. THE CHAIRMAN KERALA HEAD LOAD WORKERS WELFARE BOARD, TRIPUNITHURA SUB OFFICE, HILL PALACE ROAD, MARKET JUNCTION, TRIPUNITHURA – 682 301.

5. REJENDRAN SECRETARY, INTUC LOADING AND UNLOADING WORKERS UNION, UDAYAMPEROOR – 682 307.

6. PRAKASAN SECRETARY, ERNAKULAM DISTRICCT HEADLOAD AND GENERAL WORKERS UNION, UDAYAMPEROOR – 682 307.

7. THE POOL LEADER OF POOL NO.13 CONSTITUTED UNDER THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD, UDAYAMPEROOR – 682 307.

8. THE POOL LEADER OF POOL NO.13 A CONSTITUTED UNDER THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD, UDAYAMPEROOR – 682 307.

R4 BY ADV. SRI.C.S. AJITH PRAKASH, STANDING COUNSEL, KERALA HEADLOAD WORKERS WELFARE BOARD. R1 TO R3 BY GOVERNMENT PLEADER SRI.P.P.THAJUDEEN R5 TO R8 BY ADV. SRI.JOHN K.GEORGE R5 TO R8 BY ADV. SRI.C.K.SURESH

COMMON JUDGMENT

A. Hariprasad, J.

In these writ petitions for police protection, common questions of fact and law arise. We therefore deem it fit to deal with them together. W.P.(C) No.17779 of 2016 is taken as the leading case.

2. Facts, in brief, are as follows: Amma Granites and Tiles represented by its managing partner is the petitioner in W.P.(C) No.17779 of 2016. It is a registered partnership firm. The firm was established in 2013 for doing business in granites and flooring tiles. Its shop and godown are in Udayamperoor in Ernakulam District. Petitioner has secured all the required licences for doing business. Udayamperoor is an area to which the Scheme framed under the

# Kerala Headload Workers Act, 1978

(in short, “the Act”) applies. But, the petitioner’s unit is not an “establishment” as defined in Section 2(j) of the Act. The work of loading and unloading in the petitioner’s unit is only occasional. Regular staff members in the petitioner’s unit could do the same. Therefore, the Act, Rules and the Scheme do not apply to the petitioner’s unit. Petitioner’s unit is situated at Udayamperoor North, where pool Nos.13 and 13A, constituted under the Scheme, operate. In Udayamperoor North area, there are only five business concerns dealing with granite and flooring tiles. Rates fixed for loading and unloading of granite and tiles by the unions are much higher than the rates fixed by the unions in the nearby areas. In Udayamperoor South area, where other pools of headload workers operate, the rates fixed are much less, despite the fact that both the areas are in the same Panchayat limit. Maradu is a nearby area where similar business concerns are functioning. Rates for loading and unloading in that area is lesser than Udayamperoor North area. Respondents 5 to 8 demanded exorbitant rate for loading and unloading works in the petitioner’s business concern. In spite of pointing out the disparity in the rates between Udayamperoor North area and the nearby areas and also seeking reduction in the rate or for fixation of uniform rates, no action was taken by the authorities concerned. Due to the unlawful and unconscionable bargaining put up by respondents 5 to 8, the businessmen in Udayamperoor North area are forced to stop bringing in loads to their premises. Therefore, the petitioner seeks a writ of mandamus or other appropriate writ to the 3 rd respondent (Sub Inspector of Police, Udayamperoor) to provide effective protection to the petitioner for smoothly conducting the loading and unloading of granite and tiles without any obstruction or threat from respondents 5 to 8. It is also their contention that they have approached the 1 st respondent (District Labour Officer, Ernakulam) for unification of rates. Therefore, he seeks a writ of mandamus or other appropriate writ to the 1 st respondent to take a final decision in the proceedings pursuant to Ext.P4 notice within a specified time inter alia other reliefs. 3. 1 st respondent filed a statement. It is submitted that wages of the headload workers attached to the shops are fixed as per minimum wages notifications. Wages of other headload workers are fixed through negotiation talks between the employers and employees or through conciliation procedure of the Labour Department. Agreement executed between the employers and workers are binding among themselves and no action could be taken by the Labour Department for violation, if any, of that agreement.

4. 4 th respondent (Chairman, Kerala Headload Workers Welfare Board) filed a statement to the effect that the petitioner’s business concern is situated in Udayamperoor Grama Panchayat, which is an area where the

# Kerala Headload Workers (Regulation and Employment) Scheme, 1983

(“Scheme”, for short) is implemented. Petitioner is a registered employer under the Board bearing registration No.7619 since 08.08.2015. Petitioner is registered with Thripunithura Sub Office of the Board. Workers of pool Nos.13 and 13A are working in the said area. Petitioner is not keeping any attached registered headload worker. Wages earned by the pool workers during the month of registration, ie., 08.08.2015 is `34,559/-. Wage agreement between the Vyapari Vyavasayi Ekopana Samithi (an organisation of traders) and the headload workers’ union was revised by enhancing 25% with effect from 01.04.2015 in Ernakulam District. But the enhanced rate was limited to 20% within Udayamperoor Grama Panchayat by a bilateral agreement between the businessmen and trade unions in the local area. Petitioner is bound by such agreement, if any, executed.

5. Respondents 5 to 8 filed a counter affidavit. Petitioner’s contention that its unit is not an “establishment” as defined under the Act and Scheme is incorrect. Headload workers engaged in the petitioner’s unit are not only doing loading and unloading, they are also doing incidental works such as stacking, cleaning, etc. Predominant work in the business establishment is loading and unloading. Under these circumstances, the contention raised by the petitioner that his firm is not an “establishment” is unsustainable. The contention that the petitioner’s regular staff could do the loading and unloading in an area covered by the Act and the Scheme is not legally sustainable. In Udayamperoor Panchayat area, there are four pools registered under the scheme. Pool Nos.13 and 13A are the pools where 62 headload workers are regularly engaged. Number of workers in the other pools are very minimal. The trade unions in the other pools are working for a slightly lower rate because of the fact that new establishments are coming up in that area. Not only that, as there are less number of workers, they can get wages at par with the general rate, when the wages earned are divided among the lesser number of workers. Headload workers in Ernakulam District periodically revise their wages once in two years in consultation with the management, trade unions and Labour Officers. Revision of wages in Ernakulam District is due from 01.04.2016 onwards. After various consultations and discussions, all the parties have agreed for a revision of wages by hiking 23% of the existing wage structure. In tune with the above general agreement, the parties concerned in Udayamperoor Panchayat have decided that the hike in their region is to be limited as 20%, instead of 23%. Such an agreement was also executed between the Vyapari Vyavasayi Ekopana Samithi and pool leaders of the area. Ext.R6(a) is the copy of the agreement. This agreement is binding on all the establishments in Udayamperoor Panchayat where loading and unloading is done. The revised rate came into effect from 01.05.2016 onwards. When goods came to the petitioner’s premises on 01.05.2016, the respondents 5 to 8 asked the petitioner to pay the revised rate and thereafter the matter was taken up before the respondents 2 and 3. Based on negotiations, the respondents 5 to 8 have unloaded the goods for which payment was not made. The issue is being considered by the respondents 2 and 3 and they have directed the petitioner not to bring further goods before settling the issue regarding the revision of wages. Again the petitioner, in defiance of the directions, brought a load on 21.05.2016. The party respondents have objected to unload the same, which resulted in some skirmish in the premises. Thereafter the Panchayat President also intervened and the matter was resolved. 6. Facts in W.P.(C) No.19566 of 2016 are almost similar. Petitioner therein is running a partnership firm by name and style “Kurisinkal Floorings & Sanitaries”, which deals with marbles, granites, flooring tiles, etc. It is also situated within Udayamperoor Grama Panchayat. Petitioner has necessary licences for conducting the business. His grievance is also that the members of the respondents 6 and 7 unions caused obstructions in the loading and unloading activity. In spite of intimating this fact to the police, they did not render necessary help.

7. Respondents 6 and 7 (trade unions) raised contentions similar to those in the other writ petition.

8. We heard Sri. Philip T.Varghese, learned counsel appearing for the petitioner in W.P.(C) No.17779 of 2016, Sri.N.Retheesh, learned counsel appearing for the petitioner in W.P.(C) No.19566 of 2016, Sri.C.S.Ajith Prakash, learned Standing Counsel appearing for the Kerala Headload Workers Welfare Board, Sri.John K.George, learned counsel appearing for respondents 5 to 8 in W.P.(C) No.17779 of 2016 and Sri.P.P.Thajudheen, learned Government Pleader.

9. Sri.Philip T.Varghese heavily relied on a decision rendered by Larger Bench of this Court in

# Theresa Jose v. Sub Inspector of Police, Thoppumpady and others, 2015 (3) KHC 487

According to him, in the decision, it has been clearly held that the establishments doing business in marble and granite do not fall within the Schedule to the Act. Therefore, he would contend that the definition of “establishment” in Section 2(j) of the Act, as an establishment specified in the Schedule and includes the precincts thereof, has no application to the business establishment run by the petitioners. So much so, the party respondents have no right to claim employment under the petitioners. Another contention raised is that the purpose of the Act is to regulate the employment of headload workers in the State of Kerala. This includes, according to the learned counsel, a right of the businessmen to run a business by employing workers of his choice for loading and unloading activity without any let or hindrance from the workers of an organized sector called headload workers. In the light of these contentions, the pertinent questions arising for decision are the following:

# I. What is the intent and purport of the Act? Was it enacted only for the welfare of the headload workers coming within the purview of the Act?

# II. Whether the decision in Theresa Jose’s case (supra) excludes all the establishments doing business in marble, granite, ceramic tiles, etc. from the operation of the Act and Rules unmindful of the facts in each case?

# In other words, do the principles in the decision lay down that such business establishments will not fall within the Schedule to the Act, under any circumstance?

# Point No.I

10. The Kerala Headload Workers Act, 1978 (Act 20 of 1980) shows a Long title thus –

# “An Act to regulate the employment of Headload Workers in the State of Kerala and to make provision for their Welfare, for the Settlement of Disputes in respect of their Employment or NonEmployment and for matters connected therewith.”

The Preamble of the Act is ipsissima verba (verbatim). It is now well settled that the Long Title and Preamble of an Act is a part of the Act and is admissible as an aid to its construction. Constitution Bench of the Supreme Court in

# Poppatlal v. State of Madras, AIR 1953 SC 274

has held that the title of an Act throws light on the intent and design of the legislature and indicates the scope and purpose of the legislation itself. In another decision by a Bench comprising seven learned Judges of the Supreme Court

# In re Kerala Education Bill, 1957, AIR 1958 SC 956

it is held that the policy and purpose of a given measure may be ascertained from the Long Title and the Preamble thereof. It is an indisputable proposition that the title, although is a part of the Act, itself is not an enacting provision and though useful in case of ambiguity of the enacting provisions, is ineffective to control their meaning. The Preamble of a statute, like a Long Title, is also a part of the Act and is an admissible aid to its construction. So, Long Title and Preamble are some of the internal aids to construe a statute.

11. In order to construe a statute, there are well set rules. Learned Author Sri.Justice G.P.Singh on the “Principles of Statutory Interpretation” has dealt with the subject extensively. According to him, the guiding rules of interpretation of a statute are that the language of the statue should be read as it is, avoiding any addition or substitution of words, that the rule of literal construction should be adhered to, that the subject and object of the Act must be regarded and that the consequences of interpretation like hardship, inconvenience, injustice, absurdity, anomaly, etc. should be considered and avoided.

12. Now we shall consider the relevant provisions under the Act. The term “dispute” is defined in Section 2(h) of the Act. It means any dispute or difference between the employers and employers or between the employers and headload workers or between the headload workers and headload workers, which is connected with the employment or nonemployment or the terms of employment or the conditions of employment, of any headload workers. The explanation to this Section may not be relevant for our purpose. Section 2(i) of the Act defines the term “employer”. In relation to a headload worker employed or engaged by or through a contractor, the expression “employer” means the principal employer. In relation to a headload worker who is not employed or engaged by any employer or contractor, the term “employer” would mean the committee appointed under Section 18 of the Act. In relation to any other headload worker, the expression “employer” is the person who has ultimate control over the affairs of the establishment in or for which the headload worker is employed. Other persons, to whom the affairs of the establishment are entrusted, also will fall within the definition of “employer”. Section 2(m) of the Act defines a “headload worker”. It is a comprehensive definition encompassing all the possible means of loading and unloading and includes activities incidental thereto. The said Section is quoted hereunder for easy understanding: “(m) “headload worker” means a person employed or engaged directly or through a contractor in or for an establishment, whether for wages or not, for loading or unloading or carrying on head or person or in a trolly any article or articles in or from or to a vehicle or any place in such establishment or stacking articles, excluding delicate or sophisticated articles, in a vehicle or unloading by sliding using manual labour from a mechanically propelled vehicle or a person who does in connection with the work in ports, the works like filling of fertilizers in sacks, weighing and stitching of sacks, bundling, breaking seals of containers, stacking and includes any person not employed by any employer or contractor but engaged in the loading or unloading or carrying on head or person or in a trolly any article or articles for wages in or from or to a vehicle, or any place in such establishment or stacking articles excluding delicate or sophisticated articles in a vehicle or unloading by sliding using manual labour from a mechanically propelled vehicle but does not include a person engaged by an individual for domestic purposes.” By Explanation-I, the phrase “a person engaged by an individual for domestic purposes” occurring in the definition clause has been explained. In Explanation-II, the phrase “delicate or sophisticated articles” has been clarified. 13. Section 13 of the Act empowers the Government to make one or more Schemes for any employment or group of employments in one or more areas specified in a notification. It can be seen from the Section that the Scheme may provide for the welfare of the headload workers, for their health and safety measures, for providing benefits under the Employees’ State Insurance Act, 1948 and many other matters relating to their employment or engagement.

14. Section 21 of the Act deals with the settlement of disputes. It authorises the Assistant Labour Officer having jurisdiction to hold conciliation conferences for the purpose of bringing about a settlement of the disputes, connected with employment or non-employment or the terms of employment or with the conditions of employment of any headload worker, whether existing or apprehended.

15. By drawing power from Section 43 of the Act, the Government have framed the

# Kerala Headload Workers Rules, 1981

(in short, “the Rules”) for proper implementation of the Act. Likewise, pursuant to the provisions in Section 13 of the Act, with effect from 30.11.1983, the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 has been made. Clause 6 of the Scheme is relevant for our purpose. It reads thus: “Procedure for regulation of employment of headload workers on Scheme areas.-(1) No headload worker who is not a registered headload worker under the provision of the Kerala Headload Workers 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 Scheme in the area. (2) 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 WP(C) Nos.17779/2016(V) & 19566/2016(U) 14 required to work in any area to which the Scheme applies unless he is granted a further registration under the provisions of this Scheme.”

16. It is well settled by the precedential principles that in an area covered by the Scheme, the headload workers defined under Section 2(m) of the Act have a right to get employment unless the employer has his own employees engaged for loading and unloading registered under Rule 26A of the Rules. When an application for registration of a headload worker is made in the prescribed form to the registering authority concerned, it shall issue notice in the prescribed form to the employers or contractors from whom the headload worker claims work and also to the Chairman, Kerala Headload Workers Welfare Board local committee in such area. This applies only to an application made by the headload worker seeking employment in an area where the scheme is in operation. If registration of a headload worker is effected in accordance with the provisions of the Rules, the employer can engage him and avoid engaging a headload worker attached to the pool concerned.

17. Although the principles stated in

# Raghavan v. Superintendent of Police, 1998 (2) KLT 732 (FB)

were reconsidered by the Larger Bench in Theresa Jose‘s case, attention of the Larger Bench was revetted to the scope of the expression “establishments employing workers for loading or unloading of goods and other operations incidental and connected thereto” occurring as item No.5 to the Schedule in the Act. On other aspects, the principles in Raghavan’s case remain unaffected by the Larger Bench and still hold good. Paragraphs 19 and 20 in Raghavan’s case declare the following principles:

“19. What will be the consequence, if a headload worker does not get registered under R. 26 A? If he is not a permanent employee attached to an establishment and if he is working in an area where the Scheme is made applicable, he will not be entitled to get registered under the Scheme without first getting registered under R. 26A. Without a registration under the Scheme, he will not be able to work in that area. It is true that the permanent headload worker need not get registered under the Scheme as contemplated by clause 6A. But, in view of the provisions contained under clause 6(1), he will not 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 that area unless he is a registered headload worker under the provisions of the Kerala Headload Workers WP(C) Nos.17779/2016(V) & 19566/2016(U) 16 Rules. The provisions of sub-clause (1) of clause 6 are of general application to all headload workers unlike sub-clause (2) requiring a further registration of headload workers excluding headload workers who are permanently employed.

20. If, in an area where the Scheme is made applicable, the employer requires services of headload workers other than those whom he had permanently employed, he has necessarily to get them allotted through the committee. But, in an area where the Scheme is not made applicable and therefore there is no committee, we find no provision under the Act and the Rules which would compel the employer to engage a headload worker who has got registration under R. 26A. Therefore, it has to be taken that he is entitled to engage workers of his own choice. …………”

18. From the above mentioned statutory provisions, it is evident that the predominant object of the Act is to afford social and legal protection to the headload workers and also to put in place the measures for their welfare. However, it can be seen from the very definition of “headload workers” itself that certain persons doing loading and unloading work by carrying load on head or person or otherwise, in certain situations, cannot be treated as headload workers covered by the Act. More precisely stated, a person engaged by an individual for domestic purposes, which has been explained in Explanation-I to Section 2(m) of the Act, shall not be regarded as a headload worker and therefore he cannot claim any benefit under the Act. Similarly, a person engaged for handling delicate or sophisticated articles, explained in Explanation-II to the above definition clause, is also excluded from the purview of the Act. Likewise, in an area where the Scheme is not made applicable, no provision of this Act or the Rules would compel an employer to engage a headload worker having registration under Rule 26 A of the Rules.

19. In this context, the expression “to regulate” occurring in the Long Title and Preamble of the Act assumes importance. Oxford Thesaurus of English indicates that the word “regulate” may mean control, adjust, manage, balance, set, synchronize, modulate, tune, etc, depending on the context. According to us, in the context of this Act, the word “regulate” must be ascribed the meanings such as adjust, control, balance, modulate or synchronize. The provisions of the Act not only regulate the rights of the headload workers vis-a-vis the employers, but by excluding certain class of loading and unloading activities from the purview of the Act and also by insisting on the commencement of the functional operation of the Scheme in a particular area for the application of the Act and Rules, the public in general and certain employers engaged in certain business activities in particular are saved from the entanglements of the Act. The expression in the Long Title and Preamble of the Act, viz., “an Act to regulate the employment of Headload Workers” has a direct bearing on the rights of the public at large because the regulations will bring in certainty in the matters like quantum of wages payable to them and the details of activities excluded from the purview of the Act. Viewing from this angle, it can be stated that the Act confers benefit on certain persons other than the headload workers too. Point No.I therefore decided accordingly.

# Point No.II

20. To answer this point, we have to consider the facts and circumstances in Theresa Jose‘s case. In that case, the petitioner was the proprietrix of a business establishment engaged in the trading of marble, granite, ceramic tiles, etc. It was functioning in the residential compound of the petitioner. Petitioner contended that she had permanent employees who had been employed for segregating and stacking different types of granites, marbles, tiles, etc. based on their variety, design, colour and other factors. Their duties included interaction with the customers, sale of items, cutting and polishing the slabs and doing its unloading work from lorries. Further, it was contended that the goods that came to her premises were to be unloaded inside the premises by her own trained employees and they were using forklifts and moving cranes for lifting heavy slabs. Still further, it was contended that only two or three trucks in a month used to come to her business establishment and the loading and unloading was not a predominant activity in her establishment.

21. In the said factual background, a reference made by a Full Bench was considered by the Larger Bench.

22. Learned counsel for the petitioners relying on paragraph 19 of the decision contended that in Theresa Jose, it has been categorically found that the words “establishments employing workers for loading and unloading” occurring in item No.5 of the Schedule to the Act are in respect of establishments employing workers predominantly for loading and unloading. According to the learned counsel, if an establishment has not employed workers for loading and unloading, it may not fall within item No.5 of the Schedule.

23. We are unable to agree with the above contention of the petitioners. We do not think that the Larger Bench in Theresa Jose‘s case held that an establishment engaged in the trade of granite, marble, ceramic tiles, etc. will not come within the purview of item No.5 of the Schedule to the Act. It has to be mentioned that one of us (A.Hariprasad, J.) was a member of the Larger Bench. On a reading of the decision in Theresa Jose‘s case in its entirety, it can be seen that it is a case decided solely on the facts pleaded and established. Principles laid down in Raghavan’s case (supra) have been dealt with in paragraph 30 as follows:

“Paragraph 21 of the Full Bench judgment in Raghavan’s case (supra) has also stated that if principally, the workers are employed to carry on the work other than loading and unloading, and the loading and unloading work is only occasional, they do not come within the definition of Headload workers. The Full Bench has also rightly observed that whether the nature of work of the headload worker is predominant work or not is a question which depends on the facts of each case. To the above extent we approve the observation made by Full Bench in paragraph 21.”

Ratio of the decision in Theresa Jose‘s case with regard to interpretation of item No.5 of the Schedule is as follows:

“We thus are of considered opinion that item No.5 of the Schedule is to be interpreted to be an establishment which fulfills following three conditions: (i) An establishment is employing workers for loading and unloading of goods (ii) the work of loading and unloading for which the worker is employed, is of a predominant nature (iii) the workers employed may also be carrying on other operations incidental and connected thereto.”

24. In W.P.(C) No.17779 of 2016, what is pleaded is that the work of loading and unloading in the petitioner’s unit is only occasional and the regular staff of the petitioner’s unit could do the same. Admittedly the petitioner’s business is in an area covered by the Scheme. There is no pleading initially raised by the petitioner that any mechanical devices are being used for loading and unloading the merchandise. When the contesting respondents opposed the contentions, the petitioner filed a reply affidavit. In paragraph 4, it has been mentioned that the petitioner has its own workers, who are employed for segregating and stacking different types of marbles, granites, tiles, etc. based on their design, colour, variety, etc. Still, the petitioner has not stated that it uses any mechanical device for loading and unloading.

25. In W.P.(C) No.19566 of 2016, there is no pleading to show that the petitioner used forklifts or any other equipments for loading and unloading the commodities. Therefore, the facts pleaded in Theresa Jose‘s case are totally different from the facts in this case. Hence the ratio in Theresa Jose‘s case cannot be straightaway applied to the facts in the writ petitions on hand.

26. It is contended by the respondents that the petitioners in both cases had continuously engaged pool workers for loading and unloading activities. As mentioned above, since both the units situated within a Scheme covered area, necessarily they have to engage headload workers protected under the Act. Therefore, the petitioners are not entitled to engage their workers, especially when they have no registration under Rule 26A of the Rules. Hence we do not find any reason to grant any relief to the petitioners on the basis of the principles in Theresa Jose‘s case.

27. However, we have noticed a glaring illegality and impropriety in the implementation of the Act in Udayamperoor Panchayat. In W.P.(C) No.17776 of 2016, the petitioner has produced Ext.P3, a letter issued to the Assistant Labour Officer, I Circle, Ernakulam, Kakkanad. In Ext.P3 letter, it has been pointed out that there exists an unjustifiable disparity in the rates for loading and unloading in Udayamperoor South area on the one hand and Udayamperoor North area on the other. Besides, it shows that a lower rate is prevailing in a nearby area, viz., Maradu. It is the definite contention of the Board as well as the other respondents that wages for loading and unloading are determined by a conciliatory process between the affected parties under the aegis of the Officers of Labour Department. Notwithstanding that the contesting respondents raised a plea that the petitioners have violated the agreement entered into between them, for re-fixing the wages, we are not pronouncing on that issue for the reason that it is beyond the scope of these writ petitions. But, one thing is to be made clear that huge disparity in the wage pattern in two regions in the same Panchayat is unjustifiable under any standard. It may lead to confusion in the minds of the businessmen and general public. Not only that the excessive wages paid for loading and unloading will naturally be added on to the merchandise, resulting in a vast difference in the sale price in two parts of a local area. This may adversely affect the prospects of the businessmen and also the interests of the customers. Reckoning all these aspects, we are of the view that it is incumbent on the District Labour Officer, Ernakulam (1st respondent in W.P.(C) No.17779 of 2016) to see that these types of disputes are not erupting on account of unscientific approach to the issue. We are aware of the fact that the socio-economic conditions prevailing in one District may be different from another District in the State. From a commonsensical angle, normally it can be considered that one revenue district could be taken as one unit for striking a parity in the wage rates for loading and unloading. The District Labour Officer should take steps to study the possibility of fixing a uniform wage pattern in the District and to implement the same to the extent possible, so that much of the disputes could be resolved. Therefore, we direct the 1 st respondent to consider these issues while resolving the dispute between the contesting parties. However, for the above mentioned reasons, we are not inclined to grant the relief of police protection to the petitioners and the prayers in the petitions are declined.

With these observations, the writ petitions are disposed of.

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