JOSE ABRAHAM v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MR. JUSTICE EASWARAN S. FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946 WP(C) NO. 714 OF 2022 PETITIONER/S: JOSE ABRAHAM AGED 59 YEARS S/O.E.P.ABRAHAM, PROPRIETOR, AISWARYA CERAMICS, MALLAPPALLY ROAD, VENNIKULAM, PURAMATTOM, PATHANAMTHITTA DISTRICT - 695 544. BY ADVS. R.SUDHISH M.MANJU RESPONDENT/S: 1 2 3 4 5 6 STATE OF KERALA REPRESENTED BY THE SECRETARY, HOME DEPARTMENT, THIRUVANANTHAPURAM - 695 001. DISTRICT POLICE CHIEF PATHANAMTHITTA - 689 645. STATION HOUSE OFFICER KOIPURAM POLICE STATION, PULLAD, THIRUVALLA - 689 548. ASSISTANT LABOUR OFFICER LABOUR OFFICE, MALLAPPALLY - 689 585. KERALA HEADLOAD WORKERS WELFARE BOARD PATHANAMTHITTA - 689 645, REPRESENTED BY ITS DISTRICT OFFICER. CENTRE FOR INDIAN TRADE UNION (CITU) HEALOAD WORKERS UNIT, VENNIKULAM, THIRUVALLA - 689 544, REPRESENTED BY ITS SECRETARY. BY ADV K.SIJU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON

05.04.2024, ALONG WITH WA.162/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO. 162 OF 2022 and conctd. Case 3 JUDGMENT Amit Rawal, J. This order shall dispose of two matters ie., W.A No.162 of 2022 preferred by the Board against the judgment of the Single Bench dated 29.10.2021 in WP(C) No.3190 of 2021 whereby the party respondents was successful in seeking relief by laying challenge to the order of the registering authority as well as the appellate authority and WP(C) No.714 of 2022 seeking police protection for running the establishment and godowns owing to perpetual interference by the pool workers.

2. The facts, in brief, for adjudication of both the matters, are summarized herein below.

3. Respondent, Jose Abraham and petitioner in the writ petition is carrying on the business namely 'M/s Aiswarya Ceramaic' after having taken the permissions and licences from the statutory authorities and had two workers till 2019 as sales persons but from August 2019 onwards, owing to the increase of the business had employed other workers for the purpose of loading and unloading and in this regard submitted an application for registration under Rule 26A of the Kerala Headload Workers Rule, 1981 to the Assistant Labour Officer, respondent No.4. The application was WA NO. 162 OF 2022 and conctd. Case 4 rejected by the registering authority vide order dated 12.3.2020. Aggrieved of the aforementioned order, an appeal was preferred under 26C before the District Labour officer, which was also dismissed. It is in that background, jurisdiction under Article 226 of the Constitution of India was invoked.

4. The stand of the Board before the learned Single Bench had been that the workers working in the establishment of the party respondent are discharging the duties of salesman and would not be falling as headload workers in view of the definition under Section 2(m) of the Act.

5. The learned Single Bench on analysis of the documents and rival contentions, allowed the writ petition. It is in that background, appeal has been preferred, as stated above, on behalf of the Board and another for police protection. After hearing the argument to some extent, we had passed the following order on

28.2.2024. “This is a case where the employer though thought that the workers working under him did not require any registration as the activity of the employees working were akin to 'salesmen' who would not be falling in the definition of 'Headload Worker' as per Section 2(m) of the Kerala Headload Workers Act, but owing to the repeated intervention by the pool workers, as shown to us by producing the photographs, was compelled to apply for registration, which was rejected by the registering authority leading to the dismissal of the appeal. Learned Single Bench has allowed the writ petition. Kerala Headload Workers Welfare Board approached this Court in intra court appeals and WA NO. 162 OF 2022 and conctd. Case 5 submitted that the 'salesman' would not be falling under the definition of Section 2(m) and in support of the contention relied upon the judgment of this Court in Writ Appeal No.1119 of 2019. 2. Learned Counsel appearing on behalf of the Establishment submitted that as per the contents of the writ petition, respondent/writ petitioner was not inclined to take registration, but owing to the circumstances explained in the writ petition. Even if this Court deem it appropriate to provide police protection, but the police do not extend any protection or help as per the photographs shown. 3. We direct Advocate Vipin Das, learned Government pleader who is present in court to take instructions with regard to the averments submitted in the writ petition as well as the submissions during the course of the hearing. He is directed to file a short affidavit to rebut the allegations/assertions made during the course of hearing. Post these matters on 06/03/2024.”

6. Learned Government Pleader submitted that as per the information received from the local police, there is no likelihood of breach of law and order. In this view of the matter, we dispose of the writ petition bearing No.714 of 2022 with a liberty to the petitioner to seek indulgence from the 3rd respondent, in case of any subsequent breach of the law and order.

7. Learned counsel appearing on behalf of the Board submitted that as admitted in the application the nature of the duties rendered by the employees seeking registration under Rule 26A, have been the duties of salesman. The order of the registration authority as well as the appellate authority declining the application are perfectly legal and justified. Learned Single Bench failed to notice the aforementioned fact. WA NO. 162 OF 2022 and conctd. Case 6

8. On the other hand, learned counsel appearing on behalf of the respondent, proprietor submitted that only after August 2019, had employed two or more workers indulging into the loading and unloading, in order to avoid any breach of the provisions of the Act had submitted the application. Till August 2019, there was no need of registration as the workers working in the establishment were discharging the duties of salesman.

9. We have heard the learned counsel for the parties and appraised the paper book. Section 2(m) of the Headload Workers Act reads as under: 2(m) 'head load worker" means [a person engaged or engaged directly] or through a contractor in or for an establishment, whether for wages or not, for loading or unloading or carrying on head or person or in a trofly any article or articles in or from or to a vehicle or any place in such establishment or stacking articles excluding delicate or sophisticated articles in a vehicle or unloading by sliding using manuel labour from a mechanically propelled vehicle or a person who does in connection with the work in ports ,the works likes filling of fertlizers in sacks weighng and stiching of sacks, bundling, breaking seeks of containers, stacking and includes any person not employed by any employeror contractor but engaged in the loading or unloading or carrying on head or person or in a trolly any article or articles for wages, but does not includes a person engaged by an individual for domestic purposes.

10. No doubt, the salesman would not be falling under the definition of headload workers but the order of the registering authority as well as the appellate authority do not disclose that any WA NO. 162 OF 2022 and conctd. Case 7 such enquiry was conducted before rejecting the registration. As and when any application for registration is submitted, the registering authority is obliged to hold a preliminary enquiry regarding truthfullness in the request. In the absence of the same, all the authorities much less, the court are left in doldrum/oblivion regarding the nature of the work discharged by the workers. Pleadings of the party respondent reveals that there had been an engagement of two or more employees for discharging the duties of loading and unloading, for that, registration is inevitable. Keeping in view that fact, the learned Single Bench ordered for registration. We do not find any illegality or perveristy in the judgment of the Single Bench. Writ appeal sans merit and is accordingly dismissed. Sd/- AMIT RAWAL JUDGE Sd/- EASWARAN S. JUDGE WA NO. 162 OF 2022 and conctd. Case 8 APPENDIX OF WP(C) 714/2022 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P2A Exhibit P2B Exhibit P3 Exhibit P3A Exhibit P4 Exhibit P4A Exhibit P5 TRUE PHOTOCOPY OF THE JUDGMENT DATED 29/10/2021 IN WP(C) NO.3190/2021 OF THIS HON'BLE COURT. TRUE PHOTOCOPY OF THE RULE 26A CARD ISSUED TO THE PETITIONER'S EMPLOYEE ROSHIN GEORGE. TRUE PHOTOCOPY OF THE RULE 26A CARD ISSUED TO THE PETITIONER'S EMPLOYEE LIJIN T.BIJU. TRUE PHOTOCOPY OF THE RULE 26A CARD ISSUED TO THE PETITIONER'S EMPLOYEES VINEESH BIJU. TRUE PHOTOCOPY OF THE COMPLAINT DATED 8/1/2022 PREFERRED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. TRUE PHOTOCOPY OF THE RECEIPT DATED 8/1/2022 ISSUED BY THE 3RD RESPONDENT. TRUE PHOTOCOPY OF THE COMPLAINT DATED 25/11/2021 PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. TRUE PHOTOCOPY OF THE RECEIPT DATED 25/11/2021 ISSUED BY THE 2ND RESPONDENT. TRUE PHOTOCOPY OF THE REPRESENTATION DATED 9/1/2022 SEEKING POLICE PROTECTION PREFERRED BY THE PETITIONER BEFORE 3RD RESPONDENT. Exhibit P5A TRUE PHOTOCOPY OF THE RECEIPT DATED 9/1/2022 ISSUED BY THE 3RD RESPONDENT.