BY AD v. SRI.GRASHIOUS KURIAKOSE

BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS GP SRI. BIMAL K NATH THIS WRIT APPEAL HAVING COME UP FOR HEARING ON 11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO. 1119 OF 2019 Amit Rawal, J. 2 JUDGMENT

1. Present intra court appeal is directed against the order of the Single Bench whereby the order of the appellate authority dated 5.4.2017 rejecting the registration under Rule 26A of the Headload Workers Act and Rules has been set aside.

2. The case as set out by the respondent, writ petitioner in the writ petition was that the petitioner is a Partner – cum licencee of 'Shyla Agencies' a professional retail and wholesale store situated in Kallambalam, Thiruvananthapuam and has got permanent workers to do all the works including loading and unloading work of the store and the godown. All the loading and unloading work was being done by the permanent workers. Owing to the declaration of the scheme bringing the establishment within the ambit of the scheme submitted an application for registration of headload workers before the Assistant Labour Commissioner dated 5.4.2017. Since the application was pending, directions was sought for ordering the authority to WA NO. 1119 OF 2019 3 decide the application which was accepted vide judgment dated 22.8.2017. The competent authority vide order dated

6.12.2017, Ext.P4 dismissed the application and accordingly appeal was preferred. Appeal has also been dismissed vide Ext.P6 dated 11.6.2018. The contention of the respondent, petitioner was that the employer had every right to employ his own workers for doing the loading and unloading works. Non registration would result into violation of Article 21 of the Constitution of India and the facility of special scheme for the workers could not be availed. The reasoning assigned that the already registered headload workers would be considerably affected is no longer a good law.

3. The appellant contested the aforementioned case on the ground that respondent / petitioner was the partner of 'Shyla Agencies' carrying on the business in the whole area. Five (5) applications for registration were submitted and on inspection it was found that all the applicants were working as 'Salesman' in the establishment and therefore they would not fall under the definition of 'Headload Worker”.

4. Learned counsel for the appellant submitted that while allowing the writ petition, the learned Single Bench WA NO. 1119 OF 2019 4 failed to notice the specific contentions raised in the counter affidavit. The contents of the application reveals that the registration was sought for not as a 'Headload Worker' but as a 'Salesman'. Salesman would not fall under the definition of headload worker, thus the order of the Single Bench is not sustainable in the eyes of law. Had the applications been for actual headload workers, the finding as per the Single Bench could not have been faulted in view of the various judgment of this Court.

5. On the other hand, learned counsel appearing on behalf of the respondent opposed the aforementioned prayer and submitted that no such reasoning was assigned by the learned Single Bench and applications submitted for registration were not of Headload workers but of Salesman. Therefore the findings are perfectly legal and justified and do not call for any interference.

6. We have heard the learned counsel for the parties and appraised the paper book. The findings recorded by the Single Bench reads as under:

3. It is to be noted that without there being registered headload workers in the scheme covered area, the petitioner cannot engage salesman as headload worker. The objection of WA NO. 1119 OF 2019 5 the Board that it will affect the unattached workers cannot be a reason at all to deny registration (See the judgment of this Court in Gangadharan vs. Abdul Nasir (2016 (4) KLT 592). In such circumstances, the impugned order is set aside. There shall be a direction to the respondents to register such workers under the petitioner as headload workers in accordance with their applications without any delay, at any rate, within a period of one month from the date of receipt of a copy of this judgment.

7. The contention of the appellant in the counter affidavit filed before the learned Single Bench in paragraph 2 reads thus:

2. From 1999, the petitioner -proprietor of Shyla Agencies - a retail and whole sale store was carrying on business in the pool area at Kallambalam. Last year, the petitioner has submitted five applications for 26(A) attached cards under the Head Load Workers Act, since the establishment was in the pool area the loading and unloading works were done by the head load worker's of that pool and hence 3rd respondent-the Head Load Workers Board opposed the issuance of attached cards. Moreover, upon inspection conducted in Shyla Agencies on 03.06.2017 and the written statement of the five applicants for attached cards, it is found that the five applicants are working as salesman in this establishment.

8. On perusal of the same, it is evident that all the five applications submitted were of persons working as Salesman and not as Headload workers. Section 2m of the Headload Workers Act reads thus: (m) (m) "headload worker" means a person engaged directly or through a contractor in or for an establishment, whether for wages or not, for loading or unloading or carrying on head or person or in a trolly any article or articles in or from or to a vehicle or any place in such establishment, and includes any person not employed by any employer or contractor but engaged in the loading or unloading or carrying on head or person or in a trolly any article or articles for wages, hut does WA NO. 1119 OF 2019 6 not include a person engaged by an individual for domestic purposes ; Salesman has different set of duties to discharge the duties viz-a-viz the headload workers. They cannot be registered under the Act. This aspect has not totally been noticed by the learned Single Bench. In this view of the matter, there is illegality and perversity in the order of the Single Bench. Impugned order is set aside. Writ appeal is allowed. Sd/- AMIT RAWAL JUDGE Sd/- C.S. SUDHA JUDGE WA NO. 1119 OF 2019 7 APPENDIX OF WA 1119/2019 PETITIONER ANNEXURES ANNEXURE 1 THE TRUE COPY OF THE ORDER NO.493/2018 DATED 27/3/2019 ISSUED BY THE ALO GRANTING RULE 26A CARDS TO THE WORKERS OF THE 1ST RESPONDENT.