M/S.Kallen Marbles & Granites (PVT) LTD vs. State Of Kerala

The petitioner's specific assertion is that the loading and unloading of these articles are virtually impossible through human intervention and that it can be achieved only with the help of heavy machinery. According to them, they have such machinery in their possession and that when they tried to load and unload the afore articles using such machinery, they are being obstructed by the members of the 4th respondent/Union.

Shri Blaze K. Jose, the learned counsel appearing on behalf of the 4th respondent submits, taking cue from the counter affidavit filed on behalf of his client, that the factual assertions of the petitioner in this case are not true and that the machinery they say they have employed, do not belong to them and are, in fact, employed in another business by name “Chakiath Agencies”. According to them, the present attempt of the petitioner company is to deny the members of the 4th respondent employment and this submission is made on the factual statement that hitherto their members were being engaged by the petitioner on continuous basis.

The learned counsel appearing for the petitioner, Shri A.T. Anilkumar, counters the submission made by Shri Blaze K. Jose, by saying that even though they were earlier employing the workers from the pool maintained in the area under the provisions of the Headload Workers Act, they have decided to mechanise their operations, taking into account the change in business scenario as also because the articles are not generally capable of being transported through human effort.

The learned counsel says that merely because they were using the workers in the pool in the past, it does not mean that they cannot mechanise their operations or use machineries for transport of these heavy articles.

The learned Sr. Government Pleader, appearing on instructions received from respondents 2 and 3, submits that the dispute between the parties in this case are certainly within the realm of labour law and that the police will normally cannot and will not intervene in such disputes. He, however, says that there are no law and order issues in the area, so as to warrant an order of continuous police protection and he assures this Court that the police will intervene if there is any complaint of infraction of peace and tranquility at the instance of any person.

On a consideration of the afore submissions, we are firmly of the view that we cannot, in any manner, impede the right of the petitioner company in mechanising their process. Since they say that there was change in business scenario and they require the assistance of specialised machineries for the purpose of loading, unloading and transport of these articles, we cannot, for a moment, say that they are not entitled to do so or that they should engage the members of the 4th respondent Union for that purpose, even if it is not humanly possible to do so. This is not the province of this Court and we can only try to balance the dialectical interests of the parties to ensure that their disputes do not spill over into law and order infractions.

Since the petitioner says that they will use only machinery for the purpose of loading and unloading activities, we are of the view that as long as they use the machinery for such purpose, the members of the 4th respondent cannot have any case. However, if the petitioner does the loading and unloading activities in the business using workers, be that their own or otherwise, then certainly the members of the 4th respondent will obtain the locus to demand such employment.

We say this because Shri Anilkumar, the learned counsel for the petitioner vehemently has asserted before us that they will not require any worker for the purpose of loading and unloading of the articles and that the entire work will be done only through machineries.

In the result, we order this writ petition and direct the third respondent/S.I. of Police, to afford adequate and effective protection to the petitioner, as and when it is so warranted, as long as the petitioner does the loading and unloading work in their business using only machinery and with the aid of no worker, be that their own or otherwise. If there is any violation of this undertaking made by the petitioner before us, then certainly the 4th respondent and their members will obtain the locus to claim such employment.

Needless to say, our directions herein that the petitioner shall use only machineries, will be as regards the actual loading, unloading and other incidental works, including hooking up of the cables to such machineries for the purpose of loading and unloading of the articles and we further clarify that the operation of the machinery will also not be under the rigor of such orders. This writ petition is thus ordered. P.R. RAMACHANDRA MENON, JUDGE DEVAN RAMACHANDRAN, JUDGE lk APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE CERTIFICATE OF INCORPORATION EXHIBIT P2OF THE MEMORANDUM OF ASSOCIATION OF THE PETITIONER COMPANY. EXHIBIT P3OF THE LICENSE ISSUED BY THE KIZHAKKAMBALAM GRAMA PANCHAYATH DATED 28/4/2017 EXHIBIT P4OF KVAT REGISTRATION CERTIFICATE ISSUED TO THE PETITIONER COMPANY DATED 5/5/2008 EXHIBIT P5OF REGISTRATION CERTIFICATE ISSUED BY THE LABOUR DEPARTMENT UNDER THE SHOPS AND COMMERCIAL ESTABLISHMENT ACT. EXHIBIT P6OF GST REGISTRATION DATED 28/6/2017 EXHIBIT P7OF COMPLAINT TO THE 3RD RESPONDENT. EXHIBIT P8OF THE JUDGMENT REPORTED IN 2015(2)KHC 523. EXHIBIT P9OF THE PHOTOGRAPHS SHOWING THE MECHANISED USE IN THE COMPOUND OF THE PETITIONER. RESPONDENTS' EXHIBITS: