JUDGMENT
Jawahar Lal Gupta, C.J.
1. Does the employer have the right to employ persons of his own choice for loading and unloading the goods? This question was answered by a Division Bench of this Court in Ibrahimkutty v. Superintendent of Police, 1991(1) KLT 829 in the affirmative. Speaking for the Bench, Chief Justice Malimath had expressed the view that the right of an employer “to carry on his business by engaging labourers of his own choice cannot be denied to him.” This view was reiterated by Chief Justice Jagannadha Rao (as His Lordship then was) in Kochayyan Subrahmanian v. Cochin Cadalas (P) Ltd., 1992(2) KLT 269. It was observed that “on a perusal of the provisions of the Headload Workers Act and the Rules, we do not find any provision therein conferring any preferential right for employment on the registered headload workers, in the absence of any scheme made under Section 13.” When this matter was placed before the Division Bench, Justice Mohan Kumar had followed the view taken by the two Division Benches. However, Rajendra Babu, J. had expressed reservations. Thus, the matter was ultimately referred to a Full Bench.
2. Rajendra Babu, J. has considered the matter. On a perusal of the order, I regret my inability to agree with the order proposed by him. Hence, this separate note.
3. The facts have been elaborately noticed by his Lordship. These may briefly be recapitulated.
4. The appellant is the President of the Mavelikkara Taluk Head Load Workers Union. Respondent Nos. 3 to 5 are traders. They have their shops at Puthiyakavu, Mavelikkara, Alappuzha District. The appellant and its members obstructed the work of loading and unloading at the shops run by respondent Nos. 3 to 5. Thus, the said respondents approached this Court through a petition under Article 226 of the Constitution, viz., O.P. No. 13026 of 1993; They prayed for the issue of a direction to the Police to give them adequate protection and to restrain the members of the appellant’s union from interfering with the work of loading and unloading at their shops. This petition was allowed vide order dated July 2, 1994. It was held that “it is not open to the fourth respondent or members of the union to physically obstruct the petitioners (now respondent Nos. 3 to 5) from carrying on the unloading work by engaging workers of their choice as, the scheme is not made applicable to the area”. Respondent Nos. 1 to 3 in the said petition were “directed to give necessary protection to the petitioners to carry on the unloading work in their shops by engaging workers of their own choice.” However, “the members of the fourth respondent-union” were left free to agitate “their claim, if any, for continued employment to do the unloading work by the petitioners before the appropriate authorities otherwise than in accordance with the provisions contained in the Kerala Headload Workers (Regulations of Employment and Welfare) Scheme, 1983.”
5. In pursuance to the above order, the appellant filed an application under Section 21 (4) before the District Labour Officer. Vide order dated March 15, 1995, a copy of which has been produced as Ext.P2, the Authority directed the employers, viz. respondent Nos. 3 to 5 to re-employ the headload workers. The respondents filed an appeal under Section 21(6). They also prayed for stay. However, it appears that no order on the stay petition having been passed, the said respondents approached this Court through a petition under Article 226 of the Constitution. It was registered as O.P.No. 12524 of 1995. They prayed that the order dated March 15, 1995 be quashed.
6. The matter was considered by a learned single Judge. Vide judgment dated May 29, 1996, P.K. Balasubramanyan, J. (as His Lordship then was) allowed the Writ Petition and quashed the impugned order. It was held as under:
“I find that this court has held that under the Headload Workers Act, the members of the third respondent union had no right to insist on doing the work and that the scheme was also not applicable. As can be seen from the portion of the judgment quoted earlier, the members of the third respondent were given only a right to approach appropriate authorities other than under the Headload Workers Act. In such a situation, the second respondent acted without jurisdiction in entertaining an application by third respondent under Section 21(4) of the Act and in passing the order Ext.P2.”
Aggrieved by this judgment, the third respondent in the Writ Petition has filed the present appeal.
7. A perusal of the Order of Reference passed on June 3, 2002 indicates that Rajendra Babu, J. had reservations about the view expressed in the Full Bench and the Division Bench judgments. His Lordship had expressed the opinion that “if employers are allowed to deny employment to the workers and to employ workers of their own choice at any time, the purpose of the whole Act would become meaningless and would cause labour unrest. The question whether the employees have the right to continued employment or whether the Conciliation Officer can direct the employer to reinstate or to employ the same workers, was not considered in any of the earlier decisions. Hence, I think it proper that the matter be considered by a Larger Bench and the above disputed questions be resolved.” Thus, the Bench had referred the above issue for consideration.
8. The provisions of the Act have been elaborately noticed in the order proposed by Rajendra Babu, J. The Act was promulgated “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 non-employment and for matters connected therewith.” The first question that arises is – Does the Act debar an employer from choosing a headload worker of his own choice? Since the question has been considered and authoritatively settled by a catena of decisions, it does not appear to be necessary to examine this matter at length. Reference in this behalf may be made to only three decisions. The first of these was delivered in Ibrahimkutty’s case (supra). It was observed as under:
“It is necessary to bear in mind that the appellant has come to this court for relief on the
ground that the fifth respondent is obstructing and that the obstruction is illegal. When we asked
the learned counsel for the fifth respondent to point out the provisions which confer on them
the right to get employment under the appellant, in the matter of the work of loading and
unloading, the learned counsel was not in a position to point out any provision which confers
such a right. In the absence of such a statutory provision conferring such a right on the members
of the fifth respondent, the right of the appellant to carry on his business by engaging labourers
of his choice cannot be denied to him. As regards the resolution of the dispute contemplated
by the Head Load Workers Act is concerned, there is no injunction or prohibition for resort being
had to the authorities concerned for resolution of their disputes in accordance with the
provisions of that Act, if the provisions of that Act are applicable. But, that has nothing to do
with the right of the appellant to engage labourers of his choice, there being no statutory
prohibition against such an action, and when there is no statutory right conferred on the members
of the fifth respondent.”
Again, in Kochayyan Subrahmanian ‘s case (supra), Chief Justice Jagannadha Rao (as His Lordship then was) had observed as under:
“On a perusal of the provisions of the Headload Workers Act and the Rules, we do not find any provision therein conferring any preferential right for employment on the registered
headload workers, in the absence of any Scheme made under Section 13. Unless there is a preferential
right such as the one in Section 25H of the Industrial Disputes Act, 1947, the headload workers cannot,
in our view, contend that they should be employed on a preferential basis. While the Act and
the Rules contain no such provisions, the question will be whether the Scheme made under Section 13
in 1983 creates any such preference. Assuming that the Scheme of 1983 confers such a
preferential right to employment, it must be established that the Scheme is extended to the
particular area. The question is whether the Scheme of 1983 has been extended to the area covered
by the factory in the present case.”
9. The matter was then considered by a Full Bench in Raghavan v. Superintendent of Police (1998 (2) KLT 732). The provisions of the Act fell for consideration of the Bench. It was observed as under.
“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 Rule 26A. Therefore, it has to be taken that he is entitled to engage workers of his own choice. It is true that even in such cases, the provisions contained under Ch. III of the Act regarding hours and limitations of employment and wages would be applicable, since those provisions are not limited to registered headload worker, but are applicable to all headload workers. All sides agreed before us, and correctly too, that the provisions of the Act will have no application in respect of a worker engaged by an individual for loading and unloading for domestic purposes,”
Still further, the conclusions were recorded by their Lordships in paragraph 24. At serial Nos. 7 and 8, it was held as under:
“(7) It is open to the employer to engage his permanent headload workers attached to his establishment to do the loading and unloading work whether it is in an area where the Scheme is made applicable or not.
(8) But, in an area where the Scheme is made applicable, if the employer requires additional workers, he has to get them through the committee formed under Section 18 and in accordance with the provisions of the Scheme. In an area where the Scheme is not made applicable, there is no such obligation on the part of the employer and he can engage workers of his own choice. But he will be bound to comply with the provisions of Rule 27 in respect of such headload workers also.”
10. Thus, on precedent, it has been authoritatively held by different Benches of this Court that in an area where the Scheme is not made applicable, the employer is at liberty to “engage workers of his own choice”. In view of these authoritative
pronouncements, it appears that the question for reference to the Full Bench really did not arise. In any case, the position is settled. It cannot be unsettled. No amount of personal preference can replace the binding precedent. The doctrine of ‘stare decisis’
(keep to what has been decided previously) is of universal application. It has been
recognized for centuries. It must be followed.
11. Rajendra Babu, J. has noticed the above cases. However, it has been tenuously observed that these decisions were pronounced by the Court “without noticing the earlier judgments of this Court in Radhakrishna Umbrella Factory v. Industrial Tribunal, Alleppey (1971 KLT 193) and Calicut Mordum Spg. & Weaving Mills Ltd. v. Industrial Tribunal, Calicut (1977 KLT 688.”
12. In Radhakrishna Umbrella Factory’s case (supra), the learned Single Judge was examining the validity of the reference made by the State Government under Section 10(1)(d) of the Industrial Disputes Act, 1947. The provisions of the Kerala Headload Workers Act did not fall for consideration. Similarly, in Calicut Mordum Spinning and Weaving Mills case (supra), the award of the Labour Court was under consideration. Thus, both the cases were under the Industrial Disputes Act. These have no application to the facts and circumstances of the present case. We cannot read these judgments to mean that a headload worker working in a trader’s shop can raise an industrial dispute. The provisions of the Industrial Disputes Act are not at all attracted in a case like the present one. The counsel for the appellants had not even raised such a plea. Thus, any reference thereto is wholly out of place and uncalled for. In any event, the Full Bench decision being clear and categorical, it has to be taken as settled that in an area where the Scheme is not made applicable, the employer has the right to “engage workers of his own choice.” In my view, the conclusion drawn by Rajendra Babu, J. in paragraph 11 of the judgment regarding the observations of the Full Bench in conclusion Nos. 7 and 8 is not correct. The Full Bench has categorically held that in an area where the Scheme is not made applicable, the employer can engage workers of his own choice. It follows that the worker has no right to claim that he alone be engaged. This view is in conformity with the scheme of the statute. I find no reason to take a contrary view.
13. There is another aspect of the matter. While deciding O.P. No. 13026 of 1993, it was categorically held that “no notification was brought to the notice of this Court extending the Scheme to the area where the petitioners are carrying on their business”. Still further, it was also observed towards the close of paragraph 7 of the judgment that “it is not open to the fourth respondent or members of his union to physically obstruct the petitioners from carrying on the unloading work by engaging workers of their choice as the Scheme is not made applicable to the area.”
14. During the hearing of this case, it was not even suggested that the Scheme had been extended to the area. Thus, in view of the decisions of the two Division Benches in Ibrahimkutty’s case (supra) and Kochayyan Subrahrnanian’s case (supra) as also the Full Bench in Raghavan v. Superintendent of Police (supra), it is clear that the appellant has no right to insist that the respondents must engage them. In this context, it deserves mention that a headload worker is no more than a casual employee. If a person engages a person to carry his bag from the Train to the Taxi on one day, he is not bound to look for and then have him carry the bag on every subsequent occasion. There is no subsisting relationship of employer and employee. Accordingly, the direction given by the District Labour Officer in the impugned order is untenable.
15. Rajendra Babu, J. has also referred to Section 21 of the Act However, it appears that the real import of the provision has not been noticed. Clauses 4, 5, 6 and 7 provide as under:
“(4) If a settlement of the dispute or any of the matters in dispute is not arrived at, the Conciliation Officer shall take a decision on the dispute or, as the case may be, on the matters in respect of which no settlement has been arrived at and shall send a report of the dispute with a copy of his decision to the appellate authority.
(5) The decision of the Conciliation Officer under Sub-section (4) shall, subject to the decision of the appellate authority under Sub-section (7), be binding on all parties to the dispute.
(6) Any person aggrieved by any decision of the Conciliation Officer under Sub-section (4) may, within such time as may be prescribed, appeal to the appellate authority against such decision.
(7) On receipt of an appeal under Sub-section (6), the appellate authority shall make such inquiries as it deems fit and after giving the parties an opportunity of being heard decide the appeal within a period of two weeks from the date of receipt of the appeal.”
A perusal of Clause (4) shows that the dispute between the parties can be mutually settled before the Conciliation Officer. If it is not settled, then, the Officer has to “send a report of the dispute with a copy of his decision to the appellate authority.” Under Clause (7), the appellate authority can make such enquiry as it may deem fit. After hearing the parties, it can decide the matter. There is a duty to decide it “within a period of two weeks from the date of receipt of the appeal.” A perusal of the order dated March 15, 1995 passed by the second respondent shows that he had not made any report to the Appellate Authority. He had just passed the impugned order. The action was not in conformity with the provisions of the statute.
17. It was pointed out by the counsel for the appellant that the respondent had filed an appeal against the order dated March 15, 1995 passed by the authority. The counsel is absolutely right. However, a perusal of the record shows that along with the appeal, an application for stay had also been filed. It was posted for hearing before the Appellate Authority, viz, the Regional Joint Labour Commissioner, Kollam on July 10, 1995. On the request of the appellant in the present appeal, viz., respondent before the Appellate Authority, the matter was adjourned to July 26, 1995. On that day, the prayer for stay was declined and the hearing of the appeal was adjourned to August 7, 1995. Thus, the mandate of Section 21 that the appeal shall be decided within two weeks was not observed. In this situation, the respondents had approached this Court through a petition under Article 226 of the Constitution on August 3, 1995. They had committed no default in doing so. They appear to have been forced to approach this Court by the inaction of the Appellate Authority. The operation of the order having been stayed by this Court, the appeal was withdrawn by them. Yet, the fact remains that the order dated March 15, 1995 was directly passed by the second respondent. No report was submitted to the Appellate Authority as required by the Statute. The appellate authority had failed to decide the appeal expeditiously. Thus, the action was not in conformity with the law.
18. Rajendra Babu, J. has expressed concern for the appellant. It has been observed that the Act is a piece of beneficial legislation. It is undoubtedly so. However, a fact, which deserves mention, is that the provisions of the Act were enacted to ensure the welfare of the employees. These were not intended to provide a license to adopt unfair practice’s. Keeping in view the experience and the manner in which the headload workers had behaved, the Legislature was forced to enact the Kerala Loading and Unloading (Regulation of Wages and Restriction of Unlawful Practices) Act, 2002. It was published in the Kerala Gazette Extraordinary on September 2, 2002. In the preamble, it was clearly stated that the Act was being promulgated to regulate the wages and to restrict the unlawful practices connected with loading, unloading and transportation of goods and articles and for matters connected therewith. The provisions of the Act have been applied to every loading and unloading activity – domestic or non-domestic. In Section 5, it was provided as under:
“5. Employment of workers for non-domestic purposes:- Notwithstanding anything contained in the Kerala Headload Workers Act, 1978 (Act 20 of 1980) or the Schemes made thereunder, an employer shall have the right to carry out loading and unloading work for non-domestic purposes either by himself or by employing the workers of his own choice in any industrial park, export processing zone, industrial or commercial area, tourism project area, agricultural market as the Government may, by notification in the official Gazette, declare as such from time to time”.
Thus, the provision, which was implicit in the original Act, has been made explicit in the later statute. Still further, Chapter V of the Act prescribes the penalties for committing unlawful practices like causing obstruction and damage. It also prescribes punishment for other offences. The Act also envisages disqualification from work. Thus, in view of the latest enactment, the scope for a liberal construction is restricted.
19. It is clear that the provisions of the original Act were not understood in the right perspective. The concessions were misused. Thus, remedial measures had to be found. In this background, the wider interpretation as given by Rajendra Babu, J. shall not promote the legislative intent. The plain language of the statute does not warrant it. The attempt to invoke the provisions of the Industrial Disputes Act is wholly beyond the scope of the Act. The issue does not arise. It was not canvassed. Thus, the observations are not necessary. Keeping in view the limited issue arising in the case, I am not even adverting to the other provisions of the Act.
20. In any event, even in equity, there appears to be no scope for interference. The admitted position is that the appellant had made a claim for bonus on account of Onam. The evidence on record does not indicate that the respondents had refused to pay. In this situation, it is clear that the appellant or the members of the Union had really no cause to obstruct the working at the shops so as to force the respondents to seek police protection. In any case, they could have sought their, remedy under the Act. They should not have taken the law into their own hands. In the circumstances of the case, the order passed by the second respondent on March 15,1995, copy of which has been produced as Ext.P2, cannot be said to be just and fair.
21. In view of the above it is held that:-
1. The provisions of the Scheme have not been extended to Puthiyakavu, Mavelikkara Taluk.
2 In view of the Division Bench decisions in Ibrahimkutty ‘s case (supra) and Kochayyan Subrahmanian ‘s case (supra) as also the Full Bench judgment in Raghavan v. Superintendent of Police (supra), it is held that in an area where the Scheme is not made applicable, the employer can engage any headload worker of his own choice. A headload worker is no more than a casual employee. If a person engages a person to carry his bag from the Train to the Taxi on one day, he is not bound to look for and then have him carry the bag on every subsequent occasion. There is no subsisting relationship of employer and employee. Thus, no employee can force himself on the employer. Resultantly, even an order of reinstatement cannot be passed. At best, the Authority can order award of compensation. An indication in this behalf is clearly available in Chapters VIII and IX.
3. The second respondent had also failed to comply with the mandate of Section 21(4). Thus, the orders are illegal and suffer from a legal infirmity.
In view of the above, there appears to be no merit in this appeal. It is, consequently, dismissed. However, in the circumstances, there will be no order as to costs.
R. Rajendra Babu, J.
1. The two important questions that has come up for consideration are whether a headload worker has a right to claim continued employment under his employer and whether the District Labour Officer is empowered to direct the re-employment of the headload worker under Section 21(4) of the Head Load Workers Act.
2. Respondents 3 to 5 herein viz., K.Sudhakaran, M.Ismayil and Subrahmonian
were merchants/traders of Mavelikkara town. They filed O.P. 13026/93 before this
Court for “police protection alleging that the appellant herein, the President of the
Mavelikkara Taluk Headload Workers Union and the workers under the above union
were obstructing the unloading of consignments from the lorry to their godowns. In
the above petition it was alleged by Sri. K. Sudhakaran, M.Ismayil and Subrahmonian
(herein after referred to as “the employers’) that each of them had five permanent
headload workers of their own for doing the headload work in their establishments
and the members of the 3rd respondent Union (hereinafter referred to as the workers)
were not doing any head lead work under their employment. By Ext.Pl Judgment
dated, 21.7.1994, the learned Single Judge found that the petitioners therein viz., the
employers were entitled to the relief of police protection. Further the learned single
Judge made the following directions: –
“It is made clear that the direction given as above will not stand in the way of the members of the 4th respondent union agitating their claim if any for continued employment to the unloading work by the petitioners before the appropriate authorities otherwise than in accordance with the provisions contained under the Kerala Headload Workers (Regulations of Employment and Welfare) Scheme, 1983. If it is ultimately found that the members of the 4th respondent Union have any such right for continued employment, the petitioners will be bound by the directions given by the appropriate authorities in that respect”.
In pursuance to the above direction the workers approached the District Labour Officer, Alappuzha, who was appointed as the Conciliation Officer raising a dispute as contemplated under the Headload Workers Act. The District Labour Officer (the 2nd respondent herein) after elaborate enquiry and taking evidence, passed Ext.P2 order dated, 15.3.1995 under Section 2(4) of the Headload Workers Act (for short, hereinafter referred to as ‘the Act’) directing the employers to re-employ nine headload workers to whom headload work was denied by the employers. The above employers challenged Ext.P2 order by filing an appeal under Section 21(6) of the Act before the Appellate Authority, the Joint Labour Commissioner, Kollam as K.H.L.W. 7/1995. Though the employers sought for staying the operation of Ext.P2 order, the Appellate Authority after hearing both sides refused to stay the implementation of Ext.P2 order. But on 3.8.1995, the above employers filed O.P. 12524/95 before this Court challenging Ext.P2 order, contenting that the District Labour Officer had no jurisdiction to pass an order under Section 21(4) of the Act, particularly in the absence of making the seheme framed under Section 13 of the Act, applicable to the area. Later, the employers did not pursue the appeal filed before the Appellate Authority and accordingly the above appeal was dismissed. Thereafter, the learned Single Judge allowed O.P.No. 12524/95 and quashed Ext.P2 order of the District Labour Officer. The above judgment of the learned Single Judge in O.P.No. 12524/95 was challenged by the President of the Head Load Workers Union (the third respondent in the above Original Petition) by filing this Writ Appeal.
3. The Judges of the Division Bench (including one of us R. Rajendra Babu, J), who heard the Writ Appeal differed on the main questions, and the matter was referred for the decision of a Larger Bench and accordingly the matter was placed before a Full Bench. The Full Bench decided to refer the matter for the decision of a third Judge under Section 23 of the Travancore Cochin High Court Act. Accordingly the 3rd Judge, Mr. Hariharan Nair, J., heard the matter and agreed with the view expressed by one of the Judges. When the matter again came up before the same Division Bench, with the opinion of the 3rd Judge, the Division Bench again referred the matter for consideration by a Larger Bench, as the real questions sought to be decided/clarified by the Full Bench i.e. whether the employees have a right of re-employment and whether the District Labour Officer has the authority to direct re-employment of the worker remained unsettled. Thus, the matter had come up again for consideration before the Full Bench.
4. Heard the learned counsel for all the parties. One of the arguments advanced by Sri. K.R.B.Kaimal, the learned counsel for the workmen/appellant was that the respondents 3 to 5, the employers had denied employment to the headload workers who were doing the headload work in the establishments of those employers for the last so many years and the above termination was unjustifiable and in view of the reservation made in Ext.Pl judgment, the workers approached the District Labour Officer (the Conciliation Officer) under Section 21(4) of the Headload Workers Act and the District Labour Officer after taking evidence, passed Ext.P2 order in accordance with law. It was further submitted that the Conciliation Officer was fully competent and authorised under Section 21(4) of the Act to enquire into the matter and direct re-employment of the workers and the learned Single Judge had proceeded to decide O.P. 12524/95 on a mistaken notion that there was prohibition imposed on the workers by Ext.P1 judgment from approaching the appropriate authorities under the Headload Workers Act. By Ext.P1 Judgment, a prohibition was imposed on the Headload Workers from approaching the forum under the Kerala Headload Workers (Regulations of Employment and Welfare) Scheme, 1983. It appears that the learned Single Judge, proceeded to decide O.P. 12524/95 as if the prohibition imposed on the Headload Workers was from approaching before the authorities under the Kerala Headload Workers Act. The above approach is explicit from the Judgment in O.P. 12524/95, which reads:
“As can be seen from the portion of the judgment quoted earlier, the members of the third respondent were given only a right to approach appropriate authorities other than under the Headload Workers Act. In such a situation, the second respondent acted without jurisdiction in entertaining an application by third respondent under Section 21(4) of the Act and in passing the order Ext.P2”
The prohibition imposed by Ext.Pl judgment on the workers was only from approaching the authorities under the scheme. But the learned Single Judge while deciding O.P.12523/95, proceeded to decide the matter treating the above direction in Ext.Pl Judgment as a prohibition imposed on the workmen from approaching the authorities under the Headload Workers Act.
5. The main argument advanced by Sri. Rajasekharan Pillai, the learned counsel for the employers was that the Headload Workers Act did not contain any provisions regarding the rights or for continued employment of a worker in an establishment and as such a worker was not entitled to seek re-employment as of right. It was further argued that the District Labour Officer had no jurisdiction or authority to direct the employer to re-employ the worker in an area where the scheme framed under Section 13 of the Act was not made applicable. Sri. T.M. Mohammed Yusuff, the learned counsel for the Headload Workers Board submitted that the Headload Workers Act is a social welfare legislation intended for the security of employment and the welfare of the headload workers working in different establishments. It was further argued that and the preamble of the Act would disclose the legislative intent of the Act and the Courts have to make a liberal approach in upholding the objectives of the welfare legislations. The Headload Workers Act is a social legislation intended for the welfare of a particular class of workers viz., the headload workers. The preamble of the Act would disclose the legislative intent, the objects and reasons for the legislation. The preamble of the Headload Workers Act reads:
“WHEREAS it is expedient to regulate the employment of headload workers in the State of Kerala and to make provision for their welfare, for the settlement or disputes in respect of their employment or non-employment and for matters connected therewith”.
The above preamble would make it clear that the object of the above legislation was for making provisions for regulating the employment and non-employment of the headload workers, to make provisions for their welfare and for settlement of disputes in respect of their employment or non-employment and all connected matters. For a proper adjudication of the matter a brief consideration of the different provisions in the Act would be advantageous. Section 1 of the Act says that it shall extend to the whole of Kerala and shall come into force on such date the Government may, by notification in the Gazette, appoint. Chapter II of the Act (Sections 3 to 5) deals with the appointment of conciliation officers, appellate authorities and inspectors. Sections 6 to 10 deal with the hours of work, limitation of employment, daily intervals for rest, wages payable to headload workers, wages for work between 7 p.m. and 7 a.m. etc. Section 11 deals with the enforcement of payment of wages. Sub-section (1) of Section 11 says that if an employer pays less than the wages due to a headload worker or refuses to pay such wages, the headload worker or an official of the union to which he is a member may make an application to the conciliation officer for direction under Sub-section(2). The other subsection of Section 11 deal with the procedure for conciliation. Section 12 provides an appeal against conciliation proceedings under Section 11. Chapter IV deals with the framing of the schemes. Chapter V and VI deal with the constitution of the Board and the Committees under the Scheme. Chapter VII (Section 21 to 23) deals with disputes. Section 21 deals with the settlement of disputes. Section 22 deals with the powers of the Government for referring the dispute for adjudication or for taking a decision on the dispute. By Section 24 (Chapter VIII) the provisions of the Workmen’s Compensation Act are made applicable to the headload workers in establishments. Chapter IX deals with maintenance of the Registers and Records by the concerned authority and the employers. Chapter X deals with the penalties (inclusive of imprisonment) and procedure for the violations of the provisions in the Act and the scheme. Chapter XI deals with the miscellaneous provisions including the bar of jurisdiction of civil courts, power to take evidence on oath, recovery of money due from employer, headload workers, power of Government to levy damages from defaulted employers etc. A consideration of all the above provisions in the Act would make the legislate intent clear that the Act was enacted to protect the rights of – the headload workers, against denial of wages, denial of employment without justifiable reasons, etc.
6. A dispute has been defined in the Act under Section (2)(h) and it reads:
“Dispute” means any dispute or difference between employers and employers or between
employers and headload workers or between headload workers and headload workers, which
is connected with the employment or non-employment or the terms of employment or the
conditions of employment, of any headload workers.
Explanation: Where any employer discharges, dismisses, retrenches or otherwise terminates the services of, or denies employment of an individual headload worker, any dispute or difference between that headload worker and his employer connected with, or arising out of, such discharge, dismissal, retrenchment, termination or denial of employment shall be deemed to be a dispute notwithstanding that no other headload worker or any union of headload workers is a party to the dispute”:
A reading of the above definition would disclose that if an employer discharges, dismisses, retrenches or otherwise terminates the service of or denies employment to a headload worker it would be a dispute as defined in the Act. When a headload worker is denied of employment that is a dispute of “non employment” of the worker which can be raised before the Conciliation Officer. Section 21 of the Act which deals with settlement of disputes reads:-
(1) Where a dispute which is connected with the employment or non-employment or the terms of employment or with the conditions of work, of any headload worker exists or is apprehended, the Assistant Labour Officer, having jurisdiction may hold conciliation conferences for the purpose of bringing about a settlement of the dispute and, if such settlement is not arrived at, send a report of the dispute to the Conciliation Officer.
(2) On receipt of a report under Sub-section (1), the Conciliation Officer may hold conciliation proceedings and shall, for the purpose of bringing about a settlement of the dispute without delay investigate the same and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of promoting a fair and amicable settlement of the dispute.
(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of conciliation proceedings, the Conciliation Officer shall send a report thereof to the appellate authority.
4. If a settlement of the dispute or any of the matters in dispute is not arrived at the Conciliation Officer shall take a decision on the dispute or, as the case may be, on the matters in respect of which no settlement has been arrived at and shall send a report of the dispute with a copy of his decision to the appellate authority.
5. The decision of the Conciliation Officer under Sub-section (4) shall, subject to the decision of the appellate authority under Sub-section (7), be binding on all parties to the dispute.
6. Any person aggrieved by any decision of the Conciliation Officer under Sub-section (4) may, within such time as may be prescribed, appeal to the appellate authority against such decision.
7. On receipt of an appeal under Sub-section (6), the appellate authority shall make such inquiries as it deems fit and after giving the parties an opportunity of being heard decide the appeal within a period of two weeks from the date of receipt of the appeal.
8. Notwithstanding anything contained in any law for the time being in force, the appellate authority shall not stay the operation of the decision of the Conciliation Officer pending its decision on the appeal except for good and sufficient reasons to be recorded in writing.
Sub-section (1) of Section 21 empowers the Conciliation Officer to hold conciliation conferences for the settlement of disputes, including dispute regarding employment or non employment of a headload worker. Sub-section (2) stipulates that the conciliation shall be held without any delay and the Conciliation Officer can investigate the same and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of promoting a fair and amicable settlement of the dispute. Sub-section (3) says that if a settlement of the dispute or of any of the matters in dispute is arrived at the course of conciliation proceedings, the conciliation Officer shall send a report thereof to the appellate authority. Sub-section (4) says that if a settlement of the dispute is not arrived at the conciliation, the Conciliation Officer shall take a decision on the dispute, on the matters in respect of which no settlement has been arrived at and shall send a report of the dispute with a copy of the decision to the appellate authority. Sub-section (5) says that the decision of the Conciliation Officer under Sub-section (4) shall subject to the decision of the appellate authority under Sub-section (7) be binding on all parties to the dispute. Sub-section (6) provides for filing appeal before the appellate authority against the decision taken under Sub-section (4) by the Conciliation Officer. Sub-section (7) empowers the appellate authority to make inquiries if necessary and after hearing the parties to decide the appeal within a reasonable time. Sub-section (8) stipulates that the appellate authority shall not stay the operation of the decision of the Conciliation Officer pending decision of the appeal except for good and sufficient reasons to be recorded in writing. A consideration of the above provisions would make it clear that wide discretionary powers had been given to the Conciliation Officer and the appellate authority to take appropriate decisions for resolving the disputes and such decisions are made binding on parties. An effective and complete procedure for resolving the disputes between the parties, including a dispute on the termination of employment of an employee (worker) has been contemplated under the Headload Workers Act.
7. A Conciliation Officer as defined under Section 2(f) of the Act, is a Conciliation Officer appointed under Section 3 of the Act for that area. Section (3) deals with the appointment of Conciliation Officers. The Conciliation Officers are empowered to decide all disputes, including disputes between the employer and worker regarding employment or non-employment of the worker. As the Act applies to the whole of the State, irrespective of whether the scheme is made applicable to the area or not, all disputes between the headload workers and the employers have to be settled or decided by the Conciliation Officer under Section 21(4) of the Headload Workers Act. The Conciliation Officer is fully competent and authorised by law to decide all disputes between the parties by taking appropriate and suitable decisions and as such Ext.P2 order passed by the District Labour Officer namely, the Conciliation Officer is a valid order passed by a competent authority binding on parties.
8. Section 21 of the Act is analogous to the provisions in the Industrial Disputes Act regarding conciliation proceedings and settlement of disputes. Section 22 of the Headload Workers Act authorises the Government to make a reference of a dispute before the Appellate Authority constituted for the area of which the dispute relates. The above provision is similar to Section 10 of the Industrial Disputes Act. The provisions of the Industrial Disputes Act would apply to the whole of the country in respect of all industrial disputes between the employers and employees in all industries, industrial establishments or undertakings, and in respect of a vast sphere of disputes. The Headload Workers Act would apply to the whole of the State of Kerala and in respect of the disputes regarding the headload workers in establishments. Even prior to the coming into force of the Headload Workers Act, this court had taken the view in Radhakrishna Umbrella Factory v. Industrial Tribunal, Alleppey (1971 KLT 193) that the headload workers daily paid and had been working regularly for few years were not casual workers and their disputes would be adjudicated by the Industrial Tribunal. That was a case where the disputes between three dealers in umbrella and their workmen and between 8 dealers in textile goods and their workmen (headload workers) had been referred by the Government for adjudication before the Industrial Tribunal under Section 10(1)(d) of the Industrial Disputes Act. The disputes included revision of wages, bonus, medical benefits etc. Certain claims including revision of wages and bonus were allowed by the Industrial Tribunal, but certain claims including medical benefits were rejected. The employers challenged the award before this Court. There it was held that the definition of “workman” in the Industrial Disputes Act would take in headload workers also and there was employer-employee relationship. Again a Division Bench of this Court in Calicut Mordum Spg. & Weaving Mills Ltd. v. Industrial Tribunal, Calicut and Anr. (1977 KLT 688) considered the question whether the work of loading and unloading in lorries was of a casual nature and whether the workers were casual workers. That was a case where the management denied employment to certain headload workers engaged in the loading and unloading work in the factory and consequent to the agitation of the employees the factory was locked up. The above matter was raised and referred as an industrial dispute. The Industrial Tribunal held that the workers were entitled to be reinstated and should be given job as they were being given prior to the dispute. The above order of the Industrial Tribunal was challenged before this Court by the employer, and the above Writ Petition was dismissed. The employer, Calicut Mordum Spinning & Weaving Mills Limited challenged the above order of the learned Single Judge in appeal before the Division Bench. While dismissing the Writ Appeal, the Division Bench of this Court held:
“We have little doubt that the Tribunal found in this case that the work of loading and unloading the lorries was work of a permanent nature although it might not have been available for being undertaken itself in sufficient frequency or volume to keep the workmen permanently employed. That by itself would not make the work one of a casual nature, nor the workmen casual workmen. The finding of the Tribunal was that the workmen in question are not casual workmen and that they are therefore entitled to reinstatement. We see no ground to interfere with this finding recorded by the Tribunal”.
Thus it is clear that the permanent headload workers employed by the Industries, Industrial establishments and undertakings coming within the ambit of the Industrial Disputes Act would be workmen within the definition of a workman under the Industrial Disputes Act and the denial of employment to such headload workers would be a dispute, that could be raised before an Industrial Tribunal under the Industrial Disputes Act. Section 21 of the Headload Workers Act authorises the workers to raise such disputes before the Conciliation Officer and the Conciliation Officers are empowered to settle or decide all such disputes. Further by Section 24 of the Headload Workers Act, the provisions of the Workmens’ Compensation Act and the Rules made thereunder has been made applicable to the headload workers employed in all establishments and for that purpose, they shall be deemed to be workmen within the meaning of that Act. The Conciliation Officer or the District Labour Officer empowered to resolve the disputes under Section 21(4) could be equated to the Conciliation Officers, and the Appellate Authority under Section 21(6) of the Act to the Industrial Tribunal or the Labour Court as envisaged under the provisions of the Industrial Disputes Act. It is settled law that the Conciliation Officer or Labour Court or the Industrial Tribunal can modulate appropriate reliefs for resolving the disputes between the management and its employees in accordance with the provisions of the Industrial Disputes Act and direct re-employment if the termination of service or employment is unjustified. Similarly such powers are inherent with the Conciliation Officers or the appellate authority as constituted under the Headload Workers Act.
9. A Division Bench of this Court in Ibrahimkutty v. Superintendent of Police (1991 (1) KLT 829)’ held that the employer has the right to get the work of loading and unloading done by engaging workers of his choice. There it was observed:
“When we asked the learned counsel for the fifth respondent to point out the provisions which confer on them the right to get employment under the appellant, in the matter of the work of loading and unloading, the learned counsel was not in a position to point out any provision which confers such a right. In the absence of such a statutory provision conferring such a right on the members of the fifth respondent, the right of the appellant to carry on his business by engaging labourers of his choice cannot be denied to him”
“As regards the resolution of the dispute contemplated by the Headload Workers Act is concerned, there is no injunction or prohibition for resort being had to the authorities concerned for resolution of their disputes in accordance with the provisions of that Act, if the provisions of that Act are applicable. But, that has nothing to do with the right of the appellant to engage labourers of his choice, there being no statutory right conferred on the members of the fifth respondent”.
A Division Bench of this court in Kochayyan Subrahmanian v. Cochin Cadalas (P) Ltd. (1992 (2) KLT 269) held:
“On a perusal of the provisions of the Headload Workers Act and the Rules, we do not find any provision therein conferring any preferential right for employment on the registered headload workers, in the absence of any Scheme made under Section 13, unless there is a preferential right such as the one in Section 25H of the Industrial Disputes Act, 1947, the headload workers cannot, in our view, contend that they should be employed on a preferential basis. While the Act and the Rules contain no such provisions, the question will be whether the Scheme made under Section 13 in 1983 creates any such preference”.
The above judgments were pronounced by the Division Bench without noticing the earlier judgments of this Court in 1971 KLT 193 and 1977 KLT 688. Even prior to the legislation of the Headload Workers Act, a Division Bench of this Court had held that the permanent headload workers in Industries, Industrial establishments and undertakings coming within the ambit of the Industrial Disputes Act would come within the definition of a “workman” under the Industrial Disputes Act and a dispute between such a headload worker and the employer could be raised as an industrial dispute. This aspect was not brought to the notice of the Division Bench of this Court when the two cases cited Supra were decided.
10. In Sathyan v. Sunila Sudhakaran (ILR 1997 (1) Kerala 549), a Division Bench of this Court had taken the view that when a remedy was provided under the Headload Workers Act the disputes should be raised and be resolved before the above forum constituted under the Act. That was a case where the employer approached this Court for police protection alleging that the members of INTUC Union were causing obstruction to the loading and unloading work in the establishment of the employer and were demanding exorbitant wages. The employees raised a contention that they were doing the headload work for the last more than five years. In the above, case, this Court directed the parties to approach the competent authority under Section 21 of the Act and refused the prayer of police protection. There it was held:
“As seen above, a complete machinery has been provided for settling such disputes which will require the evidence to be filed by the parties and oral examination of witnesses may be necessary in order to find out the alleged obstruction put by such persons in lawful exercise of the right of the other party”
It was further held:
“This Court would not be justified in giving such a police protection when it has no machinery to settle such a dispute arising between two labour unions or two sets of labourers or a dispute arising between the employer and its workmen who might not have been paid their legitimate wages. If by a writ of mandamus, such Police protection is given without there being any effective machinery in the hands of this Court to settle such a score between these parties, then it would result in causing injustice to the other who will have to succumb to the pressure of the police without his legitimate right being settled under the Act”.
11. The scope and ambit of the Headload Workers Act and the Rules made thereunder to an extent had been considered by a Full Bench of this Court in Raghavan v. Superintendent of Police (1998 (2) KLT 732). That was a case where the employer had approached this Court seeking police protection. In view of the different approach made by the Division Bench in Sathyan’s case, ILR 1997 (1) Kerala 349, from the earlier decisions i.e. in 1991 (1) KLT 829 and 1992 (2) KLT 269, the matter was referred before a Full Bench. In the above case the Full Bench had laid down the following principles in para 24 of the judgment:
“1) The provisions under Chapter III of the Act are applicable to all headload workers coming within the definition of the term under the Act. (2) The definition would take in both permanent workers attached to an establishment as also workers engaged in the establishment from time to time. But workers engaged for domestic purposes are excluded. (3) The provisions of the Act would be applicable only to those headload workers who are engaged in establishments coming under the Schedule under Section 2(i). (4) All headload workers including permanent workers attached to establishments are liable to get registered under Rule 26A. (5) In the areas where the Scheme is made applicable, no headload worker who is not a registered headload worker as per the Kerala Headload Workers Rule, shall be allowed or required to work in that area. It is also necessary that such headload worker shall get a registration under the provisions of the scheme. But, a headload worker who is permanently employed by an employer or a contractor is not liable to get registration under the Scheme. (6) An employer is bound to maintain registers and records in respect of every headload worker employed by him as per the provisions contained under Section 27 including supply of wage card to any headload worker. (7) It is open to the employer to engage his permanent headload workers attached to his establishment to do the loading and unloading work whether it is in an area where the Scheme is made applicable or not. (8) But, in an area where the Scheme is made applicable, if the employer requires additional workers, he has to get them through the committee formed under Section 18 and in accordance with the provisions of the Scheme. In an area where the Scheme is not made applicable, there is no such obligation on the part of the employer and he can engage workers of his choice. But he will be bound to comply with the provisions of Rule 27 in respect of such headload workers also. (9) If a headload worker permanently attached to an establishment carrying on other work also, that, by itself, will not take him out of the definition of ‘headload worker’ under the Act. It will depend upon the nature of the principles engagement and that again has to be decided on the facts of each case”.
Clauses 7 and 8 of the above principles would go together. A reading of clauses 7 and 8 of the above principles would make it clear that in an establishment where the employer has his own permanent headload workers, and if the employer needs to employ a headload worker, in an area where the scheme applies the employer has to approach the committee, but in an area where the scheme does not apply, he can engage worker of his own choice. But while laying down the above principles, the Full Bench had not considered about the right of continued employment of a headload worker or whether the District Labour Officer/Conciliation Officer was empowered to direct the re-employment of a worker.
12. Sri. K.R.B. Kaimal, the learned counsel for the appellant argued that the object of every labour legislation was to control or regulate the arbitrary and irrational termination of employment of employees by the Management or employers and for resolving such disputes by conciliation proceedings or by taking appropriate decisions, and the prime object of the Headload Workers Act also was the same. By Section 25 of the Act a duty was cast upon the appropriate authority or officer to prepare and maintain a register of all headload workers within their jurisdiction. Rule 26 of the Headload Workers Rules (herein after referred to as ‘the Rules’) stipulates that the Assistant Labour Officer shall maintain the above Register. Rule 26 A prescribes the procedure for registering the headload workers on their applications for registration. Likewise, by Section 26 of the Act, a liability was cast upon the employers to maintain such registers and records showing the details of all headload workers under them. Rule 27(1) insist the employer to maintain the register of employment and wages in form No. V. Sub-rule 3 of Rule 27 insist the employer to make available the above registers for inspection before the authorities concerned. Sub-rule 5 of Rule 27 says that the employer shall obtain the signature of the worker in the register of employment and wages and on the wage card at the time of disbursement of the wages. The non-compliance of the above provisions would invite penal consequences in view of provisions in Chapter X of the Act. All those provisions are intended to regulate and safeguard the employment of the headload workers in the establishments and for controlling the arbitrary and illegal denial of employment to the workers by the employers.
13. A headload worker who is employed by an employer and doing the headload work solely for the same employer is a permanent headload worker of that employer. But there are other headload workers who do the work for more than one employer and more headload workers would be doing headload work for one employer. All those employers will have to keep registers showing the details of all the headload workers who are doing work in their establishments. All the above provisions in the Act make the Headload Workers Act a comprehensive and self contained code for resolving all matters relating to the employers and employees (workers). When the termination of employment of the worker is arbitrary or unjust or against the principles of natural justice, the Conciliation Officers or the appellate authority is empowered to undo the injustice and direct the re-employment of the worker, and such power is inherent with the authorities who have to decide such disputes. The authority conferred on the Conciliation Officers under Section 2(4) of the Act to “take a decision on the dispute” would include the power to direct re-employment of the worker or other appropriate decision irrespective of whether the scheme framed under Section 13 of the Act was made applicable to the area or not. Thus the Conciliation Officers and the appellate authorities exercising powers under Section 21(4) & 21(6) of the Act are competent to order re-employment of a worker. When the employer was engaging headload workers for headload work continuously for a few years, it cannot be said that he has an absolute right or unfettered right to engage new workers of his choice denying work to the employees who were doing the work.
14. Ext.P2 order was passed by the District Labour Officer (Conciliation Officer) after making due enquiries and based on evidence. The enquiry revealed that the employers were not having any permanent headload workers attached to their establishments. Further the evidence disclosed that the nine employers were doing headload work in the establishments of Respondents 3 to 5 continuously for the last few years, and they were registered headload workers with identity cards and were denied of employment. The dispute was in fact relating to quantum of bonus to be given to the headload workers during Onam. The District Labour Officer on the basis of the evidence held that there was employer employee relationship between Respondents 3 to 5 and the nine workers. On consideration of evidence on disputed facts the District Labour Officer found that the headload workers were entitled to be re-employed to do the headload work in the establishment of the Respondents 3 to 5. The above direction was given on the basis of the findings on facts relating to their earlier employment under Respondents 3 to 5. The above findings on facts cannot be challenged or set aside in Writ Petitions under Article 226 of the Constitution. Those findings are to be challenged in appeal under Section 21(6) of the Act. Though an appeal was filed under Section 21(6) of the Act that was not prosecuted and it was dismissed. The above findings on facts entered into by the District Labour Officer had become final and hence the learned Single Judge should not have interfered with Ext.P2 order of the District Labour Officer. Hence this appeal has to be allowed and O.P. 12524/95 has to be dismissed and I do accordingly.
A.K. Basheer, J.
I have perused the judgments recorded by Hon’ble Mr. Justice R. Rajendra Babu and Hon’ble the Chief Justice Mr. Justice Jawahar Lal Gupta. I agree with the judgment proposed by Hon’ble the Chief Justice.
ORDER OF THE BENCH
In view of the opinion expressed by the majority, the appeal is dismissed. However, the parties are left to bear their own costs.