Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 23RD DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 WA NO. 246 OF 2023 AGAINST THE ORDER IN RP 1082/2022 OF HIGH COURT OF KERALA [AGAINST THE JUDGMENT IN WP(C) 18590/2022 DATED 30.8.2022] APPELLANTS/REVIEW PETITIONERS/PETITIONERS IN WPC 1 NISSAM ABDUL REHIMAN KUNJU AGED 50 YEARS S/O. REHIMAN KUNJU, RESIDING AT KATHUNGAL PADA NORTH P.O., KARUNAGAPALLY TALUK, KOLLAM DISTRICT PARTNER, M/S. PIONEERS TILES AND GRANITES, HEAD OFFICE IN BUILDING NO. KSP/XIV/1383 & BRANCH IN KSP/V/687 PUTHIYAKAVU IN KULASEKHARAPURAM, PIN - 690544 2 NISSAMUDEEN AGED 40 YEARS S/O. IBRAHIM KUTTY, VAYALIL THARAYIL, KATTILKADAVU P.O., ADINAD SOUTH, KARUNAGAPALLY, PIN - 690542 3 ABDUL JUNAID S,AGED 40 YEARS S/O. SUBERKUTTY, RESIDING AT PULIVELI VADAKKETHARA, MUKUNDAPURAM P.O., MADAPALLY, CHAVARA, KOLLAM DISTRICT, PIN - 691585 4 SHEMEER AGED 36 YEARS S/O. YOUSAF KUNJU, KANDASSERIVADAKKATHIL, KATTILKADAVU, KATTILKADAVU, ADINADU SOUTH., PIN - 690542 5 NAZIM AGED 35 YEARS S/O. YOUNUS KUTTY,RESIDING AT THOPPITHARA, KAATILKADAVU, ADINAD SOUTH ., PIN - 690542 6 SUKESAR KAPAR AGED 46 YEARS S/O. VISUNI KAPAR, APARTMENT NO.348/B, PADA NORTH, KARUNAGAPALLY, PIN - 690544 7 ABDUL SALEEM AGED 35 YEARS
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S/O.SAINUDEEN KUNJU, CHANGAYIL VADAKKATHIL, ALUMKADAVU P.O, NAMBARUVIKALA, KARUNAGAPALLY, KOLLAM ., PIN - 690573 8 CHANDRAN K AGED 48 YEARS S/O. KARUNAKARAN, PUTHEN KANDATHIL, ADINADU SOUTH, KATTILKADAVU P.O. KARUNAGAPALLY., PIN - 690542 9 RAJARAM KAPAR AGED 35 YEARS S/O. RAM NARESH KAPAR, APARTMENT NO. 348/B, PADA NORTH, KARUNAGAPALLY ., PIN - 690544 10 WASHIM FIRUZ AGED 28 YEARS S/O.ABDUL MOJID, APARTMENT NO.348/B ,PADA NORTH, KARUNAGAPALLY., PIN - 690544 11 SALIM MIYAN AGED 52 YEARS S/O. ALAUDIN, RESIDING AT APARTMENT NO. 348/C, PADA NORTH, KARUNAGAPALLY., PIN - 690544 12 SHOHIDUL ISLAM AGED 30 YEARS S/O. RUSTOM ALI, RESIDING AT APARTMENT NO.348/C, PADA NORTH, KARUNAGAPALLY., PIN - 690544 13 HAFIJUDDIN AGED 29 YEARS S/O. ABDUL MATALIB, RESIDING AT APARTMENT NO.348/C, PADA NORTH, KARUNAGAPALLY., PIN - 690544 BY ADVS.
P.CHANDRASEKHAR P.V.VENUGOPAL ANOOP KRISHNA REGIMOL M.K.
ANAND SANKAR RANI MADHU RESPONDENTS/RESPONDENTS IN THE REVIEW PETITION/RESPONDENTS IN THE WPC 1 INSPECTOR OF POLICE (SHO)
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KARUNAGAPALLY POLICE STATION, PIN - 691572 2 COMMISSIONER OF POLICE (CITY) KOLLAM PIN CODE - 691001 3 CHITTUMOOLA NASSAR S/O. JAMALUDEEN KUNJU, KURUDANTE AYYATHU, (LEADER HEAD LOAD WORKER INTUC)., PIN CODE - 691571 4 YOUSUFF KUNJU, KOCHAYYATHU VEETTILL PUNNAKULAM ADINAD, (HEAD LOAD WORKER OF INTUC, KULASEKHARAPURAM BRANCH)., PIN - 696544 5 POOKUNJU S/O. PAREED KUNJU, (HEAD LOAD WORKER OF INTUC), KULASEKHARAPURAM B RANCH., PIN - 690544 6 KERALA HEAD LOAD WORKERS WELFARE FUND BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER SRM ROAD, EMAKULAM, KOCHI- 18., PIN - 682018 BY ADVS.
GP SRI.SREEJITH V.S. - R1 & R2 SRI.T.GOPALAKRISHNAN – R3 & R5 SRI.SIJU KAMALASANAN - R6 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
------------------------------------------- Writ Appeal No. 246 of 2023 ------------------------------------------- Dated this 23rd February, 2023 JUDGMENT K.Vinod Chandran, J.
The appeal is against the judgment in a Writ Petition and the rejection of a Review Petition filed pursuant to the liberty reserved by this Division Bench while dismissing an appeal filed from the judgment. The writ petition was one filed by the appellants who are the partners of a firm carrying on the business of trading in tiles, granite, marble, sanitary equipment and other allied items under the name and style M/s. Pioneers Tiles and Granites. In addition to the appellants, there is one other partner as is evident from Ext.P1 partnership deed, wherein he is shown as the first partner. The said first partner and the second partner, who is the first appellant, are the Managing Partners of the firm who are entrusted with the day- to-day affairs of the firm. All the partners are whole-time working partners, actively engaged in the business of the firm, who are entitled to remuneration as per the codicil drawn up on agreement
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of all the partners and the profit and loss of the firm, to be shared after payment of such remuneration. The first and second partners have 44% share each while the other 12 partners have 1% each.
2.
The appellants approached the writ court for police protection to carry on the loading and unloading work, without obstruction from the members of the pool constituted under the Kerala Headload Workers Act, 1978 and the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983.
The respondents were respectively the jurisdictional police, the members of the pool, respondents 3 to 5, and the Kerala Headload Workers Welfare Fund Board, who was impleaded as respondent No.6. The appellants who were the petitioners, before the writ court asserted that all the partners were engaged actively in the business of the firm for which they were also entitled to remuneration and every work including loading and unloading work is carried out by the partners. The petitioners also relied upon a judgment of this Court in WP(C).37883 of 2018 dated 27.3.2019 produced as Ext.P9 wherein a Division Bench of this Court granted police protection in a similar case where six partners were allowed to carry on the loading and unloading work without interference and interruption by the pool workers or their political supporters.
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3.
The learned Single Judge rejected the writ petition finding no substantiation of the firm having been registered and the share holding of the 12 partners, who are petitioners 2 to 13, being a mere 1% each. Exts.P2 and P3 licenses were issued in the name of the first petitioner and there is no contention raised of the petitioners having registration under Rule 26A of Kerala Headload Workers Rules, 1981. It was found that Ext.P9 judgment declared the right of partners to carry out the loading and unloading activity;
but, in the present case there is a contention raised of the partnership deed being a sham document and admitted to be pending consideration under Section 21 of the Headload Workers Act. The writ petition was rejected since the petitioners failed to bona fide prove the existence of a partnership firm; which was also directed to be looked into by the Assistant Labour Officer. An appeal was filed and the registration certificate of the firm was produced in the appeal. We were of the opinion that since the registration certificate was not produced before the learned Single Judge, it would be appropriate for the appellants to move a Review Petition. The Review was also rejected by the learned Single Judge holding that the registration certificate was not produced earlier and in any event, Ext.P9 judgment was found to be not applicable
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on the ground that the partnership deed was argued to be a sham document. It was also observed that the matter has already been directed to be considered under Section 21 of the Headload Workers Act.
4.
We heard Sri.P.Chandrasekhar for the appellants, Sri.Siju Kamalasanan for the Board and Sri.T. Gopalakrishnan for respondents 3 to 5.
5.
We have looked at the partnership deed, the relevant details of which are spoken of in the earlier part of this judgment.
We have also taken note of the certificate of registration produced as Annexure-A1 before us and in the review petition; which established a registration having been taken out under the Indian Partnership Act, 1922. We have also perused the counter affidavit of the Board which raises a contention that Ext.P1 is a bogus document for reason of the partners being migrant labourers.
Respondents 3 to 5 also in their counter affidavit asserted their claim of livelihood which is sought to be interfered with by the creation of a bogus document wherein partnership has been granted to 12 labourers whose identity itself is said to be under challenge.
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6.
We are unable to countenance the contention of the respondents that Ext.P1 is a sham document or uphold the finding of the learned Single Judge that the veracity of the partnership deed can be looked into by the authority under Section 21 of the Headload Workers Act. Ext.P1 is a partnership deed registered under a specific name with the Managing Partners having the major share of 88% and the other 12 partners holding 1% share each. The firm is also registered as is revealed from Anenxure-A1. The contention raised by the respondents that Ext.P1 is a bogus document, is not substantiated by any valid ground. The fact that 12 partners have only 1% share is not a ground on which peremptorily the deed can held to be a sham document.
7.
We do not find any distinction from the facts arising in Ext.P9 judgment but for the fact that, the firm in that case had six partners and herein there are a total of 14 partners; which do not alter the legal status of the firm and the rights of the partners, which is the basis on which the declaration has been made by the Division Bench. We do not think that the share holding of the partners would be a valid ground to find the document to be a sham one; which is the only ground raised as of now. The inclusion of migrant labourers as partners cannot also be a ground for ignoring
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the rights and liabilities that accrue to the partners by the execution of the deed and due registration of the firm under the Partnership Act. We find absolutely no violation of statutory provisions and the partners to Ext.P1 cannot, as of now, be restricted from enjoying the rights accrued to them of engaging in the activities of the firm, receiving remuneration for the work carried on as per the codicil entered into by the partners and also receiving their share of profits, if there are any. The inclusion of workers in the management is not alien to the country or the laws established and there can be no restriction imposed on the workers from other states in carrying on any trade or business in this state, so long as it is recognized by law and is after obtaining proper licenses and statutory permissions, where they are required.
8.
In the present case, we see that the licenses issued, produced as Exts.P2 and P3, are in the name of one of the Managing Partners, the 1st appellant. But, however, the licensees themselves disclose the name of the partnership firm. The GST registration taken, as revealed from Ext.P4, is in the name of the firm itself. As of now, we find no reason to accept the contention of the respondents that Ext.P1 partnership deed entered into by the appellants and one other person is a sham document.
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9.
We also do not find any authority under Section 21 of the Headload Workers Act to examine the validity of the document and lacks the power to declare it to be a sham document. Section 21 as the nominal heading shows, is for settlement of disputes, connected with the employment or non-employment or the terms of employment or with the conditions of work, of any headload worker, existing or apprehended. S.2(m) defines a headload worker as a person employed directly or indirectly through a contractor in an establishment; with specific activities of loading and unloading, included and excluded. The definition of employer in S.2(i) indicates three types of employment, under a Contractor [sub- clause (i)], under the Committee [sub-clause (ii)] and under the person who is in charge of an establishment [sub-clause (iii)]. The employer in cases of sub-clauses (i) and (iii), is the owner of the establishment or one who has ultimate control of the establishment.
As far as sub-clause (ii) is concerned, the employer is the Committee appointed under Section 18. The Explanation to the definition clause further makes it clear that the headload worker for the purpose of sub-clause (ii) is a person registered under the Scheme and paid wages by the Committee; which has reference to the members of the Pool constituted under the Scheme by the
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Committee. The dispute resolution measure of conciliation as provided under Section 21 of the Act has application only in disputes arising between the employer and the employee or the employees and employees or between employers; all with reference to the terms and conditions of employment. The dispute that can be considered will include those between the employer and the workers holding a valid registration under Rule 26A of the Rules of 1981 and those pool members who have a registration under the Rule 6A of the Scheme of 1983. In the present case, no such dispute arise since the work of loading and unloading is carried on by the partners. Their work or participation in the activities of the firm is not as a headload worker or an employee but it is in their status as partners. There is absolutely no impediment in migrant labourers being included as partners in a firm. Whatever be their individual share, they are entitled to the rights arising from such a partnership, which is also admitted to be registered as of now. They also do not require a registration under Rule 26A.
10. As to the identity of various partners and the validity of the partnership entered into, we cannot find the Headload Workers Act or the Rules framed there under or the authorities constituted there under having any competence to examine such issues.
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Definitely the authorities under the Headload Workers Act could verify the details of the persons engaged in the loading and unloading work and no interference could be caused, if they are found to be partners included in the partnership deed. The appellants under the guise of the partnership deed cannot engage any third party in the work carried on within the partnership firm business premises. If there is any additional work, as has been laid down in Ext.P9 judgment, the appellants would be obliged to engage the pool workers since there is a Scheme applicable for the area. However, we make it clear that the respondents would be entitled to approach the appropriate forum to declare the partnership deed to be a sham one; without which declaration there cannot be any interference caused to the loading and unloading work by the partners of the firm, on a mere contention raised, which is not even stated to be on legal grounds, much less substantiated.
11.
On the above reasoning, we declare the right of the appellants along with the 1st partner to engage themselves in the activities of the partnership firm including the loading and unloading work. We find that the pool workers have absolutely no right to interfere with the work carried on by the partners in their
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business. The Board also has no authority to interfere with the same. If there is any interference caused to the loading and unloading by the partners in Ext.P1 partnership deed, then the police authorities shall ensure that such interference is avoided, facilitating smooth work in the appellants' firm. We allow the appeal setting aside the judgment of the learned Singe Judge in the Writ Petition and also in the Review Petition. We leave the parties to suffer their respective costs.
Sd/- K.VINOD CHANDRAN, JUDGE Sd/-
C.JAYACHANDRAN, JUDGE Mrcs xxx