LABOUR COMMISSIONER,CIVIL STATION, KAKKANAD, ERNAKULAM.2.DISTRICT LABOUR OFFICER, CIVIL STATION, KAKKANAD,ERNAKULAM.3.KANOOR FLAVOURS v. TEK CHAND, R3

V.K.MOHANAN, J.----------------------------------------O.P. No.28686 OF 1999----------------------------------------Dated, 9th day of June, 2009 JUDGMENTThree unions, representing the workers of the 3rdrespondent establishment, are the petitioners in this writpetition in which they challenged Ext.P2 order of the 2ndrespondent and Ext.P5 order of the Ist respondent.2. The case of the petitioners unions is that theirmembers are casual employees employed in the 3rdrespondent establishment and they are carrying out theheadload as well as other production based generalwork. From the very inception of the factory, theworkers were engaged in this nature of work and theregularisation of such workers was a long pendingissue, but was not finally settled. According to thepetitioners, the service conditions and wages of theworkers were fixed through agreements entered intobetween the petitioners and the 3rd respondentmanagement.

Thus, the last agreement was entered O.P.No.28686/99-:2:-during the year 1993 which was for three years and by1996 the period of the said agreement was over. Therefore, the unions raised certain demands before the3rd respondent, including revision of wages and also forregularisation of the workers. It is the specific case of thepetitioners that, in order to defeat the above demand, the3rd respondent employer filed a complaint before the 2ndrespondent, who is the authority designated under the Kerala Head Load Workers Act, for settling the dispute. Against the complaint filed by the 3rd respondent, theunions preferred Ext.P1 objection along with which theyhave produced certain documents also. In the objection,a specific contention was raised before the 2ndrespondent regarding the maintainability of the complaintand the dispute raised by the 3rd respondent management. According to the petitioners, the workers engaged by the3rd respondent are not coming under the purview of HeadLoad Workers Act and therefore, the 2nd respondenthas no jurisdiction to entertain such complaint and O.P.No.28686/99-:3:-dispute.

But by Ext.P2 order, the 2nd respondent acceptedthe contention raised by the 3rd respondent and orderedrevision or wages under the guise that the workers whoare the members of the unions will come under thepurview of the Head Load Workers Act and they are not theworkers of the establishment3. Aggrieved by Ext.P2 order issued by the 2ndrespondent, the unions preferred Ext.P3 appeal before the Ist respondent. Challenging the order of the 2ndrespondent, to the extent it revised the wages, 3rdrespondent has also preferred appeal before the Istrespondent. Thus, the Ist respondent finally passedExt.P5 order by which the finding arrived on by the 2ndrespondent was confirmed and the appeal was dismissed. It is the above Ext.P5 order, which is the appellate orderand, Ext.P2, the original order passed by the 2ndrespondent, are challenged by the unions in this writpetition.4. I have heard the learned counsel for the O.P.No.28686/99-:4:-petitioners as well as the 3rd respondent and also thelearned Government Pleader.5.

The learned counsel for the petitioners submittedthat both the second and first respondents miserablyfailed to conduct an enquiry regarding the issue raised bythe unions as to whether the workers are coming underthe purview of the industrial dispute Act or under thepurview of the Head Load Workers Act. It is submittedthat neither in Ext.P2 nor in Ext.P5, there is no discussionregarding those aspects. It is also the case of the counselthat the materials produced by the unions were notproperly evaluated and therefore, the conclusion arrivedon the respondents 2 and 1 is wrong. It is pointed outthat the members of the unions were working under the3rd respondent for the last 20 years and this fact is notdisputed and the wages of the workers and other serviceconditions are being settled through negotiations. It is thecase of the counsel for the petitioners that Ext.P2proceedings was initiated by the 3rd respondent by O.P.No.28686/99-:5:-approaching the 2nd respondent with oblique motive todivert the real issue so as to deny the genuine demand ofthe workers for regularisation of their service.

Thusaccording to the learned counsel, both the first and secondrespondents miserably failed to consider the above issueand, as disclosed by Exts.P2 and P5, there is nodiscussion regarding those issues and no specific findingis arrived. Therefore, Exts.P2 and P5 are liable to be setaside, submits the learned counsel for the petitioners.6. On the other hand, the learned counsel for the 3rdrespondent strenuously argued that there is specificfinding in Exts.P2 and P5 orders to the effect that theworkers are being supplied by the unions and theestablishment had no control over such workers andtherefore the dispute purely attracts the provisions of the Kerala Headload Workers Act and not otherwise ascontended by the counsel for the petitioners. It is furthersubmitted that the service conditions were periodicallyrenewed through negotiations and not as decided by the O.P.No.28686/99-:6:-management.

It is also pointed out that on the basis of Exts.P2 and P5, the monetary benefits were also given tothe workers and therefore, nothing remains to be decided. 7. I have carefully considered the contentions raisedby both the counsels and also the learned GovernmentPleader and also perused the materials available onrecord.8. It is beyond dispute that the members of theunions are engaged by the 3rd respondent. Regarding thematerials mentioned in Ext.P1 objection, and also Ext.P3,there is no dispute and not effectively controverted. It isalso beyond dispute that the service conditions of thoseworkers and their wages are being fixed throughnegotiations from time to time. According to thepetitioners, the agreement so entered during the year1993 had expired during the year 1996 and therefore, new demands were raised by the unions including thedemand for regularization of the workers. It is pointed outthat the members of the Unions have got no membership O.P.No.28686/99-:7:-under the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 and they are notthe beneficiaries of the said scheme, which establishedunder the provisions of the Act.

As indicated in the nameof the petitioners, the petitioners unions are not theassociation of workers generally engaged in loading andunloading in a particular area. All the unions arerepresentative of the casual and headload workers of the3rd respondent establishment. Therefore, it can be seenthat the unions are representing the workers of the 3rdrespondent alone. The above fact has to be appreciated inthe light of the averments and claim of the unions that forthe last 20 years, the workers are engaged under the 3rdrespondent and also they are not having any identitycard under the said Act and Rules and they are also notthe beneficiaries of the Scheme mentioned above. 9. Exts.P2 and P5 initially arose out of a complaintat the instance of the 3rd respondent and, subsequently, upon the appeal preferred by the petitioners as well as O.P.No.28686/99-:8:-the 3rd respondent. The main question raised by the Unions before the 2nd respondent is that the workersrepresented by them are not head load workers so as toattract the provisions of the Kerala Head Load Workers Act.

According to the petitioners, the said petition itself wasfiled by the 3rd respondent to divert the issue regardingthe demand of the unions and workers for theregularization of the workers and to keep away the issuefrom the purview of the Industrial Disputes Act. Asevidenced by Ext.P1 and as referred in Ext.P2, certaindocuments were produced by the petitioners tosubstantiate the above contention. But there is nodiscussion regarding those materials and no otherevidence is seen called for. There is no discussionregarding the points so raised and there is no specificfinding also. The demand of the Unions for theregularisation of the workers has to be considered in thelight of the above materials or the materials to be adducedby the Unions or 3rd respondent management. It is also O.P.No.28686/99-:9:-relevant in this juncture that the workers engaged by the3rd respondent is not only for the loading and unloadingpurpose but also for the allied or incidental worksconnected with the production of the establishment.