BY AD v. C.S.AJITH PRAKASH

SMT. C.S.SHEEJA, SR. GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 16426 of 2024 3 DEVAN RAMACHANDRAN, J. = = = = = = = = = = = = = W.P.(C) No.16426 OF 2024 = = = = = = = = = = = = = = Dated, this the 29th day of May 2024 JUDGMENT The petitioners say that 2 to 5 among them are are the permanent Employees of the first who is running an establishment by name "Keerthi Traders". They say that even though petitioners 2 to 5 applied for registration under the provisions of the Kerala Head Load Workers Act invoking Section 26 A thereof, their applications had been rejected by the Assistant Labour Officer, Iritty through Ext.P7 which is however, been then confirmed in an appeal filed by the District Labour Officer as evident from Ext.P10. They assert that the reasons stated in both Exts.P7 and P10 are wholly untenable and without any factual basis and therefore that they have been constrained to challenge the same through this Writ Petition.

2. Sri.C.S.Ajith Prakash, learned counsel for the petitioners submitted that as evident from Ext.P7 on one hand the Assistant Labour Officer takes a stand that the first petitioner is not running any concern, while, in W.P.(C).No. 16426 of 2024 4 appeal the Deputy Labour Officer concedes that such an establishment is functioning but still confirmed Ext.P7 stating that the petitioners 2 to 5 are not working there. He pointed out that the basis of the Appellate Authority entering into such a conclusion is stated to be a report of the Assistant Labour Officer dated

02.03.2024, and he argued that not only are the contents of the said report factually incorrect, it has been by settled by the Authority against whom the appeal have been preferred. He submitted that this is a violation of every principle of natural justice and fairness in procedure and therefore, prayed that Ext.P7 and Ext.P10 be set aside.

3. Sri.K.S.Arun Kumar, learned Standing Counsel for third respondent, Kerala Head Load Workers Welfare Board ("Board" for short) submitted that his clients have serious objections in the applications preferred by the petitioners 2 to 5 because if that is allowed the members of the pool maintained in the area would be severely prejudiced because their opportunity of work will come down. He then added that the Assistant Labour Officer has found and reported that the first petitioner W.P.(C).No. 16426 of 2024 5 is not running any establishment and that petitioners 2 to 5 are not working in any such, Exts.P7 and P10 are rendered irreproachable. He thus prayed this Writ Petition be dismissed.

4. Smt.C.S.Sreeja, learned Senior Government Pleader adopted most of the submissions of Sri.K.S Arun Kumar and supported Exts.P7 and P10. She added that the content of the impugned orders are in the factual realm into which this Court cannot normally enter into, and that the authorities did found them conclusively by personal visits and inspections, that neither has the first petitioner running any concern nor the petitioners 2 to 5 working there. she added that the apprehensions of the board is also relevant and ought to be kept in mind by the authorities because an unhealthy competition is to be avoided even under the provisions of the Act.

5. I have examined the Exts.P7 and P9 on the touch stone of the afore rival submissions and the materials on record.

6. Pertinently, both the Assistant Labour Officer and Deputy Labour Officer have recorded in their W.P.(C).No. 16426 of 2024 6 respective orders that they have called for all the records and have examined the same followed by inspections conducted in the premises in the alleged establishment by the Assistant Labour Officer.

7. In Ext.P7 the Assistant Labour Officer has entered a finding that the first respondent concerned is not even functioning and therefore, there is no question of the petitioners 2 to 5 being allowed registration under the provisions of the Act. However, when it comes to Exts.P10, which is the order of the Appellant Authority namely the Deputy District Labour Officer, he finds, after examining records, that the establishment of the first petitioner commenced operations in November 2023 and he was engaging employees from another area. He however, relied upon a report settled by the Assistant Labour Officer dated 02.03.2024, - referred to as Item No.3 in Ext P10- to hold that the petitioners 2 to 5 are not working under the first petitioner.

8. I must say that one fails to understand how the Appellate Authority could have called for the reports from the Assistant Labour Officer when his order namely Ext.P7 was under challenge before it. It is also W.P.(C).No. 16426 of 2024 7 ineffable that even after the Appellant Authority found that the first petitioner was running his business from November 2023, he still chose to confirm Ext.P7 wherein, the finding is to the contrary namely that the said petitioner is not conducting any such business at all. When the factum of the functioning of the entity was found by the Appellate Authority I cannot understand how he relied upon a further report of the Assistant Labour Officer to conclude that the petitioners 2 to 5 are not working there. Of course, when I say this I make it clear that this is not an affirmative finding but a prima facie an observation which goes at the root of the fairness of the procedure adopted by the jurisdictional Appellate Authority. And is as well established in Administrative law this Court does not normally judge the final decision but only the decision making process.

9. Viewed in the afore perspective, when one validates Ext.P10, it is clear that it is based solely on a report of the Assistant Labour Officer, Iritty, and not on any other material. I cannot find favour with this approach of the Deputy Labour Officer, particularly when he appears to have been spared also by the factum W.P.(C).No. 16426 of 2024 8 of the objection of the Board that the registration of further people would cause prejudice to the existing members when no such modus of protection is statutorily deserved.

10. In the afore circumstances, I am left without doubt that Ext.P10 cannot find my favour and the matter will require to be reconsidered by the Appellate Authority.

11. In summation, I allow this Writ Petition and set aside Ext.P10; with a consequential direction to the first respondent - District Labour Officer, to reconsider the appeal of the petitioners taking into account all relevant and germane aspects, but without relying upon the report of the Assistant Labour Officer, Iritty, after affording both sides necessary opportunities of being heard; thus culminating in an appropriate fresh order, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment.

12. I, however, clarify that the Appellate Authority will have full jurisdiction and competence to conduct and cause to conduct any investigation or W.P.(C).No. 16426 of 2024 9 inquiry as is statutorily warranted; and that he can do so without being trammeled or fettered by any of my observations above. That said, the further prayer of the first petitioner that he is entitled to engage his own workers for the purpose of his trading business as relying on the judgment of this Court in KERALA HEADLOAD WORKERS WELFARE BOARD v. NISHAD M.B AND OTHERS [2022(5) KHC 367] is not been considered affirmatively in the statute and is left open because, most of the facts are still not clear and amorphous, particularly as regard the nature of the business, the articles that have been involved etc. Therefore, these contents are left open to be impelled by the petitioners in future after the afore excise is complete. Sd/- DEVAN RAMACHANDRAN, JUDGE SSG W.P.(C).No. 16426 of 2024 10 APPENDIX OF WP(C) 16426/2024 PETITIONERS' EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 Exhibit P11 Exhibit P12 A TRUE COPY OF THE TRADE LICENSE NO.401088/PTL19/GPO/2023/6050 ISSUED BY THE 'MUZHAKUNNU GRAMAPANCAHAYTH' FOR KEERTHI TRADERS DATED 29-9-2023 A TRUE COPY OF THE GST REGISTRATION CERTIFICATE NO.32BIDPS2878CIZB DATED 21-10-2023 ISSUED TO THE PETITIONER A TRUE COPY OF THE 26A CARD APPLICATION SUBMITTED BY MR.MOHAMMED FAZIL/THE 2ND PETITIONER DATED 18-10-2023 UNDER RULE 26A 2ND RESPONDENT A TRUE COPY OF THE 26A CARD APPLICATION SUBMITTED BY MR.RAFEEQ A.K/3RD PETITIONER UNDER RULE 26A BEFORE THE 2ND RESPONDENT A TRUE COPY OF THE 26A APPLICATION SUBMITTED BY MR.MOHAMMED JUNAID P/THE 4TH PETITIONER DATED 18-10-2023 BEFORE THE 2ND RESPONDENT A TRUE COPY OF THE 26A CARD APPLICATION SUBMITTED BY THE 5TH PETITIONER MR.ASHARAF DATED 18-10-2023, BEFORE THE 2ND RESPONDENT A TRUE COPY OF THE ORDER NO. 02/2020 DATED 3-1-2024 ISSUED BY THE 2ND RESPONDENT A TRUE PHOTOGRAPH OF THE LOCATION OF THE GODOWN A TRUE COPY OF THE COMMON APPEAL MEMORANDUM FILED BY THE PETITIONERS 2 TO 5 DATED 17-1-2024 A TRUE COPY OF THE COMMON ORDER OF THE 1ST RESPONDENT ORDER NO.G(3)1581/2024 DATED 7-3-2024 ISSUED TO RESPONDENT 2 TO 5 A TRUE COPY OF THE REGISTER OF EMPLOYMENT AND WAGES MAINTAINED BY THE 1ST PETITIONER EMPLOYER FOR THE PERIOD COVERING 1-11-2023 TO 4-11-2023 A TRUE COPY OF THE REGISTER OF EMPLOYMENT AND WAGES MAINTAINED BY THE 1ST W.P.(C).No. 16426 of 2024 11 Exhibit P13 Exhibit P14 Exhibit P15 Exhibit P16 Exhibit P17 Exhibit P18 Exhibit P19 PETITIONER /EMPLOYER, COVERING THE PERIOD FROM 5-11-2023 TO 11-11-2023 A TRUE COPY OF THE FORM VI WAGE SLIP OF THE 2ND PETITIONER FOR THE PERIOD FROM 1-11-2023 TO 4-11-2023 MAINTAINED BY THE 1ST PETITIONER A TRUE COPY OF THE FORM VI WAGE SLIP OF THE 3RD PETITIONER COVERING THE PERIOD 1-11-2023 TO 4-11-2023 A TRUE COPY OF THE WAGE FORM VI WAGE SLIP OF THE 4TH PETITIONER MAINTAINED BY THE 1ST PETITIONER COVERING THE PERIOD FROM 1-11-2023 TO 4-11-2023 A TRUE COPY OF THE FORM VI WAGE SLIP OF THE 5TH PETITIONER MAINTAINED BY THE 1ST PETITIONER COVERING THE PERIOD FROM 1-11-2023 TO 4-11-2023 A TRUE COPY OF THE INTERIM ORDER IN IA.6/2023 IN WPC.15653/2023 DATED 13-07-2023 A TRUE COPY OF THE JUDGMENT DATED 20-12-2022 IN W.A.1942/2022 OF THIS HON'BLE COURT A TRUE COPY OF THE JUDGMENT IN WPC.32577/2023 DATED 7-11-2023