Headload Workers; Gangadharan C.P. Vs. Abdul Nasir [Kerala High Court, 09-09-2016]

Headload Workers Rules (Kerala) – Rule 26A – Registration of Headload Workers – the Rule does not envisage issuance of any notice before registration to the existing registered ‘unattached workers’ in the area and no right is conferred upon them to submit objections in these days.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

W.A.No.1498 OF 2016

Dated this the 9 th September, 2016

(AGAINST THE JUDGMENT IN WP(C) 6304/2016 of HIGH COURT OF KERALA DATED 20-06-2016)

APPELLANT/THIRD PARTIES

GANGADHARAN C.P., SECRETARY, PANOOR AREA HEADLOAD WORKERS UNION, PANOOR, KANNUR DISTRICT AND ANOTHER

BY ADVS.SRI.M.SASINDRAN SRI.S.SHYAM KUMAR

RESPONDENT(S)/RESPONDENTS

ABDUL NASIR, KANNUR AND 6 OTHERS

R1 TO R4 BY SRI.G.S.KRISHNAN KARTHA BY SRI.RIYAL DEVASSY BY SRI.B.ASHOK SHENOY BY SRI.P.S.GIREESH R5 AND R6 BY GOVT.PLEADER MR. T.R. RAJASEKHARAN NAIR R7 BY SRI.C.S.AJITH PRAKASH, SC, KHWWB

J U D G M E N T

P.R. Ramachandra Menon, J.

Appellants are strangers to the writ petition, which was finalised by the learned single Judge setting aside the orders passed by the Asst. Labour Officer and the District Labour Officer (original authority and appellate authority respectively), whereby a direction was also given to grant registration to the attached workers of the writ petitioners in terms of

# Rule 26A of the Kerala Headload Workers Rules

This appeal has been preferred after getting the leave of this Court as per order dated 28.07.2016 in I.A.No.887/2016, pointing out that the appellants were necessary parties to the proceedings and that having denied an opportunity of hearing, much loss, prejudice and hardships have been caused to them, which hence is sought to be intercepted by this Court.

2. The sequence of events revealed from the proceedings is that the first petitioner, who is the Managing partner of the partnership firm by name “Peekay Traders” sought to get registration of the attached workers for carrying out the incidental loading and unloading operations being carried out in the establishment. The said establishment was a newly set up unit, based on Ext.P1 partnership deed dated 31.08.2015, for doing retail business in Cement, Iron, Steel, Tiles and so on. Registration under the relevant provisions of the KVAT Act and Rules was obtained as borne by Ext.P2 certificate. Similarly, the establishment has also got the necessary D&O licence from the concerned Local authority, as evident from Ext.P3.

3. In the course of further steps for getting the petitioners 2 to 4, (who are the attached workers of the establishment) registered under the relevant provisions of the above Act/Rules, particularly the area being a ‘scheme-covered area’, Exts.P4 to P6 applications were submitted by the workers concerned in Form No.IX before the 6 th respondent herein. Since the said applications dated 28.12.2015 were not acted upon, the first petitioner was constrained to move this Court by filing W.P(C) No..655 of 2016 . The said writ petition was disposed of as per Ext.P7 judgment, directing the sole respondent therein, who is the 6 th respondent in this appeal, to consider and pass appropriate orders in the said applications. Pursuant to the said verdict, the 6 th respondent inspected the shop of the first petitioner and recorded the statement, which was virtually to the effect that he did not have any objection to register the names of the other petitioners, as the headload workers attached to the establishment. Despite this, the applications were rejected by the 6 th respondent as per Ext.P8 order dated 06.02.2016, merely holding that registration, if given to the concerned applicants, will adversely affect the rights and interests of the existing registered headload workers in the area, as to the extent of employment available to them.

4. Met with the situation, the said order was sought to be challenged by filing a statutory appeal before the first respondent in the writ petition(who is the 5 th respondent herein), but without considering the actual facts and figures and the relevant provisions of law in the proper perspective, the appeal was dismissed confirming the order passed by the registering authority vide Ext.P9 order dated 09.02.2016. This made the writ petitioners to approach this Court challenging Exts.P8 and P9 on various grounds. The concerned Welfare Fund Board came to be impleaded as an Addl. Respondent in the party array. After hearing both the sides, a learned Single Judge observed that there was absolutely no rhyme or reason to have rejected the applications and that the applicants had every right to get themselves registered as headload workers of the first petitioner. The learned single Judge also observed that the establishment being a new one, the question of maintenance of relevant registers, (which was stated as lacking as held by the original authority and the appellate authority) was of no consequence, by virtue of the law declared already by another single Judge of this Court as per the decision reported in

# Rajeev V. v. District Labour Officer, 2010 (4) KLT 783

It was accordingly, that the impugned orders were set aside and the registering authority was directed to grant registration within a period of three weeks from the date of receipt of a copy of the judgment. It is against the said verdict, that the present appeal has been preferred by two persons, styled themselves as office bearers of the Headload Workers’ Union in the area and representing the workers concerned, who have already obtained registration in the area.

5. Heard Mr.M. Sasindran, the learned counsel appearing for the appellants, Mr. T.R. Rajasekharan Nair, the learned Sr.Govt. Pleader appearing for the departmental authorities, Mr. B. Ashok Shenoy, the learned counsel appearing on behalf of respondents 1 to 4 in the appeal and also Mr. Ajith Prakash, the learned Standing Counsel appearing on behalf of the 7 th respondent/Kerala Headload Workers Welfare Fund Board.

6. The learned counsel appearing for the appellants submitted that the registration ordered to be granted by the learned single Judge is without any regard to the right to livelihood of the existing workers who have got registration under the relevant rules. As per the relevant provisions of the Act, Rules and the Scheme, statutory registers are liable to be maintained by the Employer in respect of the employees engaged by him and admittedly since no such records had been maintained or produced, no positive relief could have been given in the instant case. The learned counsel also submits that the quantum of work available in the area is quite meagre and if registration is given to the attached workers (writ petitioners 2 to 4), it will quite adversely affect the rights and interests of the existing registered workers in the area and the job opportunity will be lost for ever. It is stated that the existing workers have got a vested right to oppose the registration and they form an ‘aggrieved party’ in terms of the provisions of the statute; by virtue of which, their non-impleadment in the party array is liable to be taken serious note of. The verdict passed by the learned single Judge without ascertaining their version is hence liable to be intercepted, submits the learned counsel. Reliance is sought to be placed on the decision rendered by a Division Bench of this Court reported in

# Jnana Prakasam v. Natarajan, 2002 (1) KLT 39

holding that persons similarly situated like the appellants herein are ‘aggrieved persons and that the existing workmen are entitled to maintain an appeal, if aggrieved of any order passed by the departmental authorities. Since the decision taken by the departmental authorities stands in favour of the appellants, applying the same logic, the verdict passed by the learned single Judge is liable to be interfered, submits the learned counsel.

7. The version of the appellants is supported by the learned Sr. Government Pleader. But it is sought to be rebutted by the learned counsel appearing for the respondents 1 to 4, pointing out that the law declared by the Division Bench in 2002 (1) KLT 39 (cited supra) is not applicable to the case in hand. It is pointed out that the scope of the said verdict was considered by a learned Judge of this Court in

# Majeed vs. District Labour Officer, 2015(1) KLT 750

and the position stands answered in favour of the employer. Reliance is also sought to be placed on the verdict passed by two learned Judges of this Court in 2010 (4) KLT 783 = 2010 (4) KHC 757 (cited supra) and

# Alfred Thomas v. State of Kerala and others, 2015 (5) KHC 275

besides placing reliance on the verdict passed by another learned Judge as per the decision reported in

# Muhammed Shafeek and others vs. District Labour Officer, 2015 (1) KLT 314 : 2015 (1) KHC 550

Observation made by a Larger Bench of this Court (5 Judges) as to the scheme of the statute as discussed in

# Theresa Jose v. Sub Inspector of Police, 2015 (1) KLT 485 (LB)

is also adverted to, to arrive at a proper conclusion.

8. By virtue of declaration of law, by pronouncing an authoritative judgment in 2015(1) KLT 485 (LB) (cited supa), ( analysing the scope of the provisions in the Act, Rules and the Scheme), there cannot be any further ambiguity in this regard. The issue considered therein was with reference to the right of the writ petitioner who sought to engage a permanent employee for segregating and stacking of different types of granites, marbles, tiles, etc., besides their duties, which also included interaction with customers, sale of the items, cutting and polishing of slabs and doing loading and unloading works in connection with the loads arrived at in the premises twice or thrice a month. The scope of the verdict passed by a Full Bench of this Court in

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

laying down that in a scheme covered area, permanent workers cannot do loading and unloading work unless they are registered under Rule 26A of the Rules, besides some other points as to the nature of establishment and the like were also considered. The observations made by the Bench as contained in paragraph 29 and 30 are in the following terms:

“29. 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.

30. 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.”

9. Going by the scheme of the statute and also by virtue of the binding precedents, it is always open for the Employer to make appropriate arrangements by engaging workers of his own to do the loading and unloading operations as well, thus getting it done by the attached workers, but it requires registration of such attached workers in terms of Rule 26A of the Rules. It is quite open for anybody to have his own freedom to do the work, trade or business which is a fundamental right under Article 19 (1)(g) of the Constitution of India. If such person/Employer seeks to engage sufficient number of workers to meet the requirements of his establishment on a permanent basis, it cannot be objected to from any corner, as it is the vested right of the Employer to engage sufficient number of employees of his choice. But, by virtue of the provisions for regulating loading and unloading operations in an area, the State Government has passed an enactment and has formulated relevant rules in exercise of the rule making power. Since the area in question has been notified as a Scheme-covered area, such engagement of loading/unloading workers by the Employer has necessarily to be in tune with the regulations and it is accordingly, that registration of such workers is contemplated under Rule 26A of the Rules. It was in conformity with the said rules, that applications were made by the permanent workers/attached workers of the first writ petitioner vide Exts.P4, P5 and P6 before the registering authority, which however came to be rejected by the Asst. Labour Officer for the reason that it would adversely affect the rights of the existing registered workers in the area and further that the first writ petitioner/Employer had not maintained proper records, in terms of the statute. We find that the law declared by the different single Benches of this Court as per the rulings reported in 2010(4) KLT 783 (Rajeev’s case) 2015 (1)KLT 750 (Majeed’ case)

# Alfred Thomas v. State of Kerala and others, 2015 (5) KHC 275

and 2015(1)KLT 314 (Muhammed Shafeek’s case) are correctly decided in relation to the rights and liberties of the parties concerned, to the extent the issue involved in the present case is concerned. The sum and substance is that, it is very much obligatory for the registering authority to give registration to the attached workers , in terms of Rule 26A of the Rules, so as to enable the Employer and the attached workers to carry out the requirements of the establishment to the desired extent, which cannot be watered down or thwarted in any manner.

10. Coming to applicability of verdict passed by a Division Bench of this Court reported in 2002 (1) KLT 39 (cited supra), as sought to be relied on by the appellants, the contention is that, registration can be denied, if it adversely affects the rights of the existing workers in the area and that there is a vested right to such registered ‘unattached workers’ to object granting of registration. It was a case where the writ petitioners were headload workers engaged in loading and unloading in the timber sale depot of the Forest Department at Walayar, who had obtained registration under Rule 26A of the Rules. On issuance of the identity cards to the writ petitioners, the party respondents/ headload workers in the locality engaged in doing loading and unloading works at Walayar Forest Coupe filed an appeal before the appellate authority under Rule 26C of the Rules, objecting the registration granted to the writ petitioners and claiming exclusive rights to do the loading and unloading work in the timber depot as well. After considering the grievance, the appellate authority allowed the appeal and cancelled the registration and the identity cards issued to the writ petitioners, which was challenged by filing the writ petition before this Court.

11. A learned Judge of this Court held that the order passed by the appellate authority was not correct or sustainable and that the workers who had already got registration under the Rules cannot challenge the registration and identity cards issued to another set of workers and that they were not ‘aggrieved persons’ within the meaning of Rule 26C of the Rules, so as to have maintained any appeal challenging the order passed under Rule 26A of the Rules. After hearing both the sides and also after making a reference to the verdicts passed in

# Olga Tellis & others v. Bombay Municipal Corpn. & ors; (1985) 3 SCC 545

and

# Delhi Transport Corporation v. DTC Mazdoor Congress & ors; (1991) Supp.(1) SCC 600

the Bench observed that the ‘right to life’ includes the right to livelihood as well. The Bench also observed that the right of appeal under Rule 26C was vested with any person aggrieved by an order of the registering authority passed under sub-rules (3)of Rule 26A. In so far as the persons concerned, who had already obtained registration under Rule 26A in the area, were to be adversely affected if the work was to be shared among more persons by including those who obtained registration subsequently as well and as such, they were to be treated as ‘persons aggrieved’ who were given a right of appeal under Rule 26C. The order passed by the appellate authority was upheld; but the matter was directed to be reconsidered after hearing all the parties including the existing registered workers in the area as well. The Bench also made it clear that the Bench had not expressed any opinion regarding the merit of the case (regarding the need for granting registration to the additional workers).

12. From the above, it is quite evident that, it was never a case where objection was raised by the existing registered workers in the area, in respect of registration of ‘attached workers’ of an establishment (as in the instant case ) but with regard to the objection against granting of registration to more ‘unattached workers’ in the area. For this reason itself , the said verdict is not applicable to the case in hand and the reliance sought to be placed on the same is rather misconceived.

13. Yet another aspect to be noted is that, the only point decided by the Division Bench was whether the existing registered workers of the area could be said as ‘aggrieved persons’ in terms of Rule 26C of the Rules, if registration is given to more workers in the area by the registering authority and that’s all. It has not been specifically considered or held by the Bench as to whether such existing registered unattached workers in the area were having any right to be heard initially at the time of or before granting registration by the registering authority.

14. Rule 26A of the Rules dealing with the provision for registration reads as follows:

# 26A: Registration of Headload Workers

(1) Any headload worker may submit his application for registration in Form IX to the Registering Authority concerned, with as many additional copies as there are employers or contractors from whom he claims to work.

(2) On receipt of such application the Registering Authority shall issue notice in Form X to the employers or contractors from whom the headload worker claims work and in area where the Kerala Headload Workers (Regulation of Employment and Welfare )Scheme, 1983 is in operation, to the Chairman, Kerala Headload Workers Welfare Board Local Committee in such area with copy of the application inviting objections, if any, on such application.

(3) After considering the objections, if any, received and after giving an opportunity of being heard, the Registering Authority shall register the name of the headload worker in the Register of Headload Workers, on being satisfied that the headload worker is eligible for registration and communicate the fact to the parties within two weeks of such registration. The Registering Authority shall also issue identity card to the registered headload worker in Form XI. If the name is not registered, the Registering Authority shall communicate the fact to the applicant with reasons therefor

(3A) Where the identity card of registration granted to a headload worker under sub-section (3) is defaced or accidentally lost or irrecoverably destroyed, he shall apply for a duplicate identity card along with two copies of recent photograph and a find of Rs.25/- (Rupees twenty five only) to the Registering Authority concerned. The Registering Authority may after making necessary enquiries and satisfying himself of the genuineness , issue a duplicate identity card.

4. The registration of the person as headload worker may be cancelled by the Deputy Labour Officer or the District Labour Office concerned or where there is no post of Deputy Labour Officer in that District Labour Office, by the Asst. Labour Officer Grade I after satisfying himself on a report from Registering Authority that the Registration has been obtained by fraud or mistake.

Provided that not less than one months’ previous notice in writing specifying the ground on which the registration is proposed to be cancelled shall be given by the authority empowered to cancel the registration the headload worker, before the registration is cancelled. ”.

15. From the above, it is quite obvious that, when an application for registration is obtained from a worker intending to get himself registered as a loading/unloading worker, notice in Form X is to be issued by the registering authority to the Employers or Contractors, from whom the headload worker claims work, with copy of the application, inviting objections, if any. It is after considering the said objection submitted under sub-rule (2) of Rule 26A that an opportunity of hearing has to be given as envisaged under sub-rule (3) of Rule 26A and shall pass an order on satisfying the eligibility, thereby giving registration and communicating the same to the parties concerned; also issuing identity card to the registered headload worker in Form XI. If the name is not registered, then also, the registering authority is to communicate the fact to the applicant with the reasons therefore. The above Rules being the only rules for governing the field of registration, notice is intended under sub-rule (2) of Rule 26A inviting objections only from the Employers or Contractors from whom the headload worker claims work and from nobody else. In other words, the Rule does not envisage issuance of any notice before registration to the existing registered ‘unattached workers’ in the area and no right is conferred upon them to submit objections in these days.

16. However, coming to the scope of appeal in terms of Rule 26C, it could be said, in the light of the observation made by a Division Bench of this Court in 2002 (1) KLT 39 (cited supra), that they are also to be treated as ‘aggrieved persons’ in so far as their right to livelihood to the requisite extent has been adversely affected, because of the order passed by the registering authority and hence that they would be eligible to prefer an appeal against such an order of registration. This however does not and cannot be taken to mean that such workers having registration in the area are entitled to object before granting such registration, that too, in respect of registration sought for to the ‘attached workers’ of an establishment. This Court cannot but hold that the appellants herein have absolutely no right to object to the registration sought for by the writ petitioners as per Exts.P4 to P6 applications submitted by the attached workers and their understanding to the contrary is thoroughly wrong and misconceived.

17. Yet another aspect to be noted is that the status of the persons, who are the existing registered unattached workers in the area, who get aggrieved if any order is passed by the registering authority granting registration to more number of workers in the area and thus enabling them to prefer an appeal in terms of Rule 26C of the Rules, was made with reference to the right to live, which was declared as inclusive over right to livelihood as made clear by the Apex Court in Olga Telli‘s case and DTC case (cited supra). Applying the very same logic and reasoning, this Court is of the view that a similar right is there for a person, who becomes eligible, to get registered and to eke out his livelihood in the area. On a given date, a person may not be eligible but on attaining the eligibility, particularly on attaining majority and on feeling the need to maintain his family, [which may be consisting of different persons/dependents/patients/aged parents /widows/children and the like], at least by doing some loading or unloading operations, it definitely amounts to his right to live, which naturally includes the right to livelihood as well. This constitutional right to the person concerned cannot be denied to him merely for the reason that somebody else, who has already got berth may have to adjust a bit more with the available infrastructure. Nobody can contend that those who became fortuitous to have obtained registration earlier could alone continue as such, denying similar rights to the others. Under such circumstances, it is always for the statutory authorities to regulate the extent of work available among the eligible hands by appropriate means/measures, either by way of rotation or otherwise and it is not by promoting only one lot and pushing down the other lot for ever. As such, eventhough the already existing registered unattached workers could be said as persons aggrieved on granting registration to more persons in the area and hence are eligible to prefer an appeal in terms of Rule 26C, it is for the appellate authority to consider all these aspects to an appropriate extent, giving effect to the scheme of the statute, without compromising the fundamental principle of equality before law and such other relevant provisions. In the instant case, since the registration sought for by the writ petitioners was in respect of ‘attached workers‘ of the establishment and since the appellants are admittedly the registered unattached workers in the area, they could never have objected to such registration under any circumstance. No law or binding precedent is brought to the notice of this Court, to the contrary, so as to entertain the claim mooted by the appellants. The statutory authorities, particularly the registering authority and the appellate authority failed miserably in this regard, which has been rightly intercepted by the learned single Judge by setting aside the orders concerned. We hold that the verdict passed by the learned single Judge is perfectly within the four walls of law and is not assailable under any circumstance. Interference is declined and appeal is dismissed accordingly. No cost.

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