IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10021 of 2009(W)
1. ANOOP K.A., AGED 30 (THIRTY) YEARS,
... Petitioner
2. ANEESH K.A., AGED 29 (TWENTY NINE)YEARS,
3. JISSAR M.M., AGED 21 (TWENTY ONE)YEARS,
4. RATHEESH KUMAR, AGED 26 (TWENTY SIX)
Vs
1. THE ASST. LABOUR OFFICER,
... Respondent
2. DISTRICT LABOUR OFFICER,
3. KERALA HEADLOAD WORKERS WELFARE BOARD,
4. HEADLOAD & GENERAL WORKERS UNION
5. HEADLOAD & GENERAL WORKERS UNION
For Petitioner :SRI.K.SREESAKUMAR
For Respondent :SRI.SIRAJ KAROLY
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :23/12/2009
O R D E R
S.SIRI JAGAN, J.
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W.P.(C).No. 10021 of 2009
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Dated this the 23rd day of December, 2009
J U D G M E N T
The 1st petitioner is a trader in cements. He started his business
in Door Nos.VII/8J and 8K of Vengola Grama Panchayat. The premises
of the business was taken on rent by the 1st petitioner from one Moosa
as per rent deed dated 25.4.2008. He obtained Ext.P2 licence for the
business from the Panchayat on 27.5.2008. He started the business by
the end of May, 2008. The 1st petitioner wanted to engage permanent
headload workers for doing the loading and unloading work in the
newly started establishment. He chose petitioners 2 to 4. Petitioners 2
to 4 filed applications dated 16.6.2008 before the 1st respondent for
registration under Rule 26A of the Kerala Headload Workers Rules. The
said applications are Exts.P4(a) to P4(c). When there was delay in
consideration of those applications, the petitioners approached this
Court by filing W.P.(C).No.25707/2008, in which, by Ext.P5 judgment
dated 26.8.2008, this Court directed the 1st respondent to consider
and pass orders on the applications within one month from the date of
receipt of a copy of that judgment. Immediately thereafter, on
27.8.2008, the 1st respondent passed Ext.P6 order rejecting the
applications on the ground that the 1st petitioner could not prove that
petitioners 2 to 4 were employed by him, by producing appropriate
w.p.c.10021/09 2
documents and also that the headload works of the 1st petitioner’s
establishment were being conducted by pool workers of pool No.91
and 92. Against that order, the petitioners filed appeal before the 2nd
respondent, who rejected the same, by Ext.P7 order, on the ground
that the chairperson of the local committee of the Kerala Headload
Workers Welfare Fund Board has given evidence to the effect that the
area in question is a scheme covered area and that in the 1st
petitioner’s establishment, workers of pool Nos.91 and 92 were doing
loading and unloading work. The petitioners are challenging Exts.P6
and P7 orders in this writ petition.
2. According to the petitioners, petitioners 2 to 4 are actually
working in the establishment of the 1st petitioner, which is evident from
Exts.P8 register maintained by the 1st petitioner, Ext.P9 muster rolls
and Ext.P10 wage slips for payment of wages to petitioners 2 to 4.
The petitioners would, therefore, contend that the finding of
respondents 1 and 2 that the 1st petitioner could not prove that
petitioners 2 to 4 were employed by the 1st petitioner is not true to
facts and therefore, the finding in that regard is clearly perverse.
3. The learned Government Pleader appearing for
respondents 1 and 2 supports Exts.P6 and P7 orders on the same
reasons as contained therein. The counsel for the 3rd respondent also
supports the orders on the ground that the work of the 1st petitioner’s
w.p.c.10021/09 3
establishment were being carried out by pool workers of pool Nos.91
and 92 of the local committee and, therefore, they are entitled to
continue to be employed by the 1st petitioner.
4. I have considered the rival contentions in detail.
5. Rule 26A prescribes only the procedure for registration of
headload workers. Rule 26A is contained in Chapter IV of the Kerala
Headload Workers Rules, which is prescribed under Chapter IX of the
Kerala Headload Workers Act. Chapter IX contains the provisions
regarding registration of headload workers, employers and
maintenance of records. Section 26 contains the provisions for
employment of persons in a new establishment. The said section
provides thus:
“26. Employment of persons in new establishment.- (1)
Notwithstanding anything contained in this Act, when a new
establishment or firm has started otherwise than by the change of
ownership or name or by shifting of an establishment or firm from one
place to another, the employer may employ on a regular basis any person
of his choice for carrying out the loading and unloading work in his
establishment or firm:
Provided that any head load worker employed or engaged for
loading or unloading work in or for an establishment or firm shall not be
denied his employment in that establishment or firm.
(2) Every employer of new establishment or firm as mentioned
in sub-section (1) shall furnish the details of head load workers employed
by him within 30 days from the date of such employment to the authority
or officer referred to in Section 25.
(3) No head load worker employed in any establishment who
has been in continuous service for not less than one year under an
employer or contractor shall be denied employment by that employer
until the head load worker has been –
w.p.c.10021/09 4
(a) given one month’s notice in writing indicating the reasons
for denial of employment and the period of notice has expired or the head
load worker has been paid in lieu of such notice wages for the period of
the notice.
(b) paid at the time of denial of employment compensation
which shall be equivalent to fifteen days average pay for every completed
year of continuous service or any part thereof in excess of six months.”
It is not disputed before me that the 1st petitioner started the
new establishment by the end of May, 2008. It is also not disputed
before me that Exts.P4(a) to P4(c) applications for registration under
Rule 26A were submitted by petitioners 2 to 4 on 16.6.2008 for
registration as attached headload workers of the petitioner’s new
establishment. Therefore, clearly Section 26A is attracted to the
present case in so far as the 1st petitioner has started a new
establishment and he has chosen petitioners 2 to 4 as headload
workers to be employed by him on a regular basis. That being so,
petitioners 2 to 4, whom the 1st petitioner has chosen as his headload
workers on regular basis, are entitled to get registration under Rule
26A. Under Section 25 of the Act, every headload worker shall register
his name with such authority or officer in such manner as may be
prescribed and shall also register his name as provided in the Scheme,
on the commencement of the functional operation of that Scheme.
Therefore, only registered workers can work as headload workers in a
new establishment. Certainly a new worker would not have registration
unless he applied for registration under Rule 26A. In this case,
w.p.c.10021/09 5
petitioners 2 to 4 have filed applications as soon as the 1st petitioner
started business and selected petitioners 2 to 4 as his regular headload
workers. Even assuming that pool workers of pool Nos.91 and 92 have
been engaged by the 1st petitioner, that can only be pending
registration of his regular workers under Rule 26A. Simply because for
some time the 1st petitioner had engaged pool workers of pool Nos.91
and 92 (assuming that to be so), that cannot ipso facto prevent
petitioners 2 to 4 from getting registration under Rule 26A as regular
workers of the 1st petitioner. Therefore, I am satisfied that Exts.P6 and
P7 orders denying registration to petitioners 2 to 4 under Rule 26A is
clearly perverse and unsustainable. Accordingly, Exts.P6 and P7 orders
are quashed. The 1st respondent is directed to give registration to
petitioners 2 to 4 as regular workers of the 1st petitioner as
expeditiously as possible, at any rate, within one month from the date
of receipt of a certified copy of this judgment.
The writ petition is allowed as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
w.p.c.10021/09 6