NISHAD M.B v. THE SUPERINTENDENT OF POLICE

BY ADVS. S.KRISHNA MOORTHY, SC, KHWWB SRI.MATHEW K.JOSEPH (B/O) MATHEW KURIAKOSE K.R.ARUN(K/1026/2005) T.G.SUNIL (PERUMBAVOOR)(K/611/2007) J.KRISHNAKUMAR (ADOOR)(K/731/2011) C.N.PRAKASH(K/000729/2017) MONI GEORGE(K/1593/2019) SHAJI P.K.(K/1043/2021) SR GP SRI T K VIPINDAS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON

09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.No.877 of 2023 IN W.P.(C).No.3786 of 2023 3 AMIT RAWAL & C.S.SUDHA, JJ. ------------------------------------------------------------------------- W.A.No.877 of 2023 IN W.P.(C).No.3786 of 2023 -------------------------------------------------------------------------- Dated this the 09th day of January, 2024 J U D G M E N T Amit Rawal, J. The present intra court appeal is directed against the judgment of the Single Bench wherein the following prayers were sought: “A. A writ of mandamus or any other appropriate writ order or declaring that the petitioner is entitle to deploy and engage his workers for the establishment for the work in relation to the establishment irrespective of the area of work which includes outside the premises of establishment. B. A writ of mandamus or any other appropriate writ order or direction commanding the 11th respondent to hear and dispose of Exhibit P7 appeal within a time fixed by this Hon'ble Court. C. Any other appropriate writ order or direction as this Hon'ble Court deem fit and proper on the facts and in the circumstances of the case and allow this writ petition with cost, for the ends of justice. D. translation of vernacular documents.” Kindly dispense with the filing of the

2. While considering the aforesaid prayers, it was submitted that learned Single Bench abdicated in dealing with Prayer No.A. As far as prayer No.B is concerned, the present intra court appeal is not pressed on W.A.No.877 of 2023 IN W.P.(C).No.3786 of 2023 4 the ground that during the interregnum, appeal preferred, has been dismissed and reserved right to take challenge in accordance with law.

3. The brief facts for dealing with the controversy in issue is, petitioner is a proprietorship firm indulging into wholesale of vegetables and has set of registered and unregistered headload workers. We will not be dealing with the cases of unregistered workers, in view of the fact that right has already been reserved. As and when some orders are placed, the appellant/petitioner engages the service of a transport and loads vegetables or the goods in which he is dealing with and unloads at the place of a retailer or person who placed the order. While undertaking such activity, respondent nos.5 to 9, the Unions started obstructing the smooth functioning of the appellant/petitioner. Having left with no other option, had to approach this Court in W.P.(C).No.22543 of 2021. This Court considering the predicament of the appellant and noticing the contentions of the counsel representing the Headload Workers Welfare Board and the Unions, disposed of the writ petition whereby a direction was issued to the Circle Inspector of Police to ensure that the lives of the petitioner and that of his employees – whose names were mentioned in Ext.P2 therein, are adequately and effectively protected from interference from the Unions and permit them to carry on loading and unloading activities in the establishment in question W.A.No.877 of 2023 IN W.P.(C).No.3786 of 2023 5 and further direction for maintenance of law and order.

4. Despite having been clothed with the aforementioned order, the interference continued giving a cause to approach this court with the aforementioned prayers. Learned counsel appearing on behalf of the appellant submitted that the kind of work the appellant is indulging into, if the grievance of the Board or the Union is accepted, would result into double taxation for, unloading and loading goods or vegetables from his establishment and unloading at the establishment of the person who placed the order by engaging the other set of employees is not in tandem with the aims and objects of the act and rules were framed, much less the amendment caused. The expression establishment used in Section 9A in continuation of the said activity would relate to the work of his establishment. It defies logic in case the arguments of the Union and the Board is accepted. Learned Single Judge for the reason best known did not adjudicate the issue pertaining to prayer no.A, it is in that background intra court appeal has been preferred.

5. In support of the contention, has relied upon the following judgments, K.K.Issac and Company and Another v. District Police Chief, Aluva, 2020 (2) KHC 190, Cresent Trading Company v. Sub Inspector of Police, 2009 KHC 4434, Eastern Condiments (P) Ltd. v. Sub W.A.No.877 of 2023 IN W.P.(C).No.3786 of 2023 6 Inspector of Police, 2012 KHC 2597 and decision rendered by the Division Bench in Writ Appeal No.109 of 2022, Ext.P5 attached with the writ petition and the present appeal.

6. Advocate Mathew Kuriakose, learned counsel appearing for the Unions laid emphasis on the definition of establishment defined under Sections 9A and 2(j) of the Act and submitted that headload workers employed in establishment are permitted to work in the same very establishment and cannot be permitted to unload the goods at the establishment of a third person as it would defeat the purpose of enactment of the Act and the rules framed thereunder. All the judgments relied upon by the appellant were rendered prior to the amendment caused in Section 9A. Similar is the arguments of the counsel representing the Board. Even the definition of headload worker if looked into specifically deals with the establishment and not the work of other establishments incidental thereto.

7. We have heard learned counsel for the parties and appraised the paper book.

8. Definition of establishment defined in Section 2(j) reads as under: “establishment” means an establishment specified in the Schedule and includes the precincts thereof.” W.A.No.877 of 2023 IN W.P.(C).No.3786 of 2023 7

9. The establishment has been explained in the Schedule framed under Section 2(j). Clause 7 of the said Schedule would be relevant for the adjudication and the same reads as under. “Establishments employing workers for loading, unloading and carrying of foodgrains and such other work incidental and connected thereto.” On perusal of the same it means establishment employing workers for loading, unloading and carrying of food grains and such other work incidental and connected thereto.

10. Definition of Section 2(m) in the headload workers is extracted hereinbelow: “headload worker” means a person employed 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 trolly 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 manual labour from a mechanically propelled vehicle or a person who does in connection with the work in ports, the works like filling of fertilizers in sacks, weighing and stitching of sacks, bundling, breaking seals of containers, stacking and includes any person not employed by any employer or contractor but engaged in W.A.No.877 of 2023 IN W.P.(C).No.3786 of 2023 8 the loading or unloading or carrying on head or person or in a trolly and article or articles for wages 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 manual labour from a mechanically propelled vehicle but does not include a person engaged by an individual for domestic purposes. Explanation I:- For the purpose of this clause, “a person engaged by an individual for domestic purposes” means any person engaged by an individual for,-- (i) shifting including transportation of furniture, personal effects and other household articles for domestic use; or (ii) working in connection with the shifting of articles of dwelling house of a person including work in connection with religious or social or public functions; or (iii) cutting, removing, shifting and transportation of trees and wood for personal use; or (iv) constructing or repairing and maintenance of house including the shifting and transportation of construction materials, equipment or machinery for personal use and not for the purpose of trade; or (v) dismantling, demolishing and shifting of old building materials or equipment including their transportation which is not for industrial or commercial purpose; or (vi) shifting and transportation of animals for personal use; or W.A.No.877 of 2023 IN W.P.(C).No.3786 of 2023 9 (vii) shifting and transportation of materials including agricultural implements, agricultural machinery, raw materials, agricultural produces, other materials related to agricultural operations in such person's land; or (vii) doing such other work or activity or process which the Government may, by notification in the Gazette, specify to be a domestic purpose; Explanation II-- For the purpose of this clause, “delicate or sophisticated articles” mean articles which require to be handled by trained or skilled persons.

11. The emphasis laid on the above definition cannot be read in the stricto senso to mean an establishment of the worker in view of the explanation given in Schedule. Section 9A was introduced by the legislature in April 2018 and the same reads as under: “9A. Engaging the services of headload workers:- (1) Subject to the provisions of this Act, an employer shall engage a headload worker registered under the Act in connection with the work of his establishment: Provided that in the case of works which require assistance of skilled persons and which are to be done with due diligence or require the aid of machinery, such works may be done by engaging the persons having such skill or by the machinery, as the case may be. (2) Every Headload worker shall be entitled to W.A.No.877 of 2023 IN W.P.(C).No.3786 of 2023 10 wages as prescribed by the Government under the provisions of this Act only if their services have been engaged by the employer or the owner of an establishment.”

12. On cumulative reading of all the aforementioned provisions, particularly the explanation of establishment in Clause no.7 of the Schedule and the ratio decidendi in the judgment cited (Supra), which we would be dealing later, the arguments coined by the Union and the workers do not merit acceptance. It would create a total anarchical situation whereby an establishment having a registered set of headload workers having special skills would be confined to work only that particular kind of work/business involved into, and would require to engage another set of headload workers either from the Union or the one who may or may have been engaged by a buyer for purpose of unloading. The question of registration after the introduction of Section 9A also came to be pondered by the Division Bench of this Court in W.A.No.109 of 2022 and while noticing the definition of headload workers attached or unattached it was laid down that even if during the pendency of the application for registration the workers employed by the establishment will be permitted to continue. While rendering the judgment, ratio decidendi culled out by the Larger Bench of this Court in Theresa W.A.No.877 of 2023 IN W.P.(C).No.3786 of 2023 11 Jose v. Sub Inspector of Police, 2015 (1) KLT 485 was also noticed. The simple meaning of establishment as per the provisions extracted above, have already been noted in the judgments referred to above; para 16 of Eastern Condiments (P) Ltd., para 8 of Cresent Trading Company and Para 6 of K.K.Issac and Company (supra). However the Single Bench did not ponder upon the prayer A for vindication of the grievance sought to be decided by this Court. For the reasons aforementioned, we allow the writ appeal and permit appellant/petitioner to employ his registered headload workers for the purpose of loading and unloading in any establishment and the work incidental thereto for delivering the goods at the place of the purchaser as sought for. Sd/- AMIT RAWAL JUDGE Sd/- C.S.SUDHA JUDGE