Judgment
W.P.(C).No.18590/22 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 30TH DAY OF AUGUST 2022 / 8TH BHADRA, 1944 WP(C) NO. 18590 OF 2022 PETITIONERS:
1 NISSAM ABDUL REHIMAN KUNJU, AGED 50 YEARS S/O REHIMAN KUNJU, RESIDING AT KATHUNGAL PADA NORTH . PO ,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 CODE 690544.
2 NISSAMUDEEN, AGED 40 YEAR, S/O IBRAHIM KUTTY, VAYALIL THARAYIL, KATTILKADAVU P.O., ADINAD SOUTH, KARUNAGAPALLY, PIN CODE 690542.
3 ABDUL JUNAID.S., S/O SUBERKUTTY AGED 40 YEARS, RESIDING AT PULIVELI VADAKKETHARA, MUKUNDAPAURAM P.O., MADAPALLY ,CHAVARA, PIN CODE 691585.
4 SHEMEER, S/O YOUSAF KUNJU AGED 36 YEARS, KANDASSERIVADAKKATHIL, KATTILKADAVU, KATTILKADAVU ,ADINAD SOUTH, PIN CODE 690542.
5 NAZIM, S/O YOUNUS KUTTY ,AGED 35 YEARS, RESIDING AT THOPPITHARA, KATTILKADAVU ,ADINAD SOUTH PIN CODE 690542.
W.P.(C).No.18590/22 2 6 SUKESAR KAPAR S/O VISUNI KAPAR, AGED 46 YEARS, APARTMENT NO 348/B, PADA NORTH, KARUNAGAPALLY, PIN CODE NO 690544.
7 ABDUL SALEEM, S/O SAINUDEEN KUNJU ,AGED 35 YEARS CHANGAYIL VADAKKATHIL, ALUMKADAVU P.O NAMBARUVIKALA, KARUNAGAPALLY, KOLLAM PIN CODE 690573.
8 CHANDRAN .K S/O KARUNAKARAN, AGED 48 YEARS PUTHEN KANDATHIL, ADINADU SOUTH,KATTILKADAVU P.O KARUNAGAPALLY PIN 690542.
9 RAJARAM KAPAR, S/O RAM NARESH KAPAR AGED 35 YEARS APARTMENT NO 348/B,PADA NORTH, KARUNAGAPALLYPIN CODE NO 690544.
10 WASHIM FIRUZ, S/O ABDUL MOJID AGED 28 YEARS, APARTMENT NO 348/B, PADA NORTH, KARUNAGAPALLY, PIN CODE NO 690544.
11 SALIM MIYAN, S/O ALAUDIN AGED 52 YEARS, RESIDING AT APARTMENT NO 348/C, PADA NORTH, KARUNAGAPALLY, PIN CODE NO 690544.
12 SHOHIDUL ISLAM, S/O RUSTOM ALI AGED 30 YEARS, RESIDING AT APARTMENT NO 348/C, PADA NORTH, KARUNAGAPALLY, PIN CODE NO 690544.
13 HAFIJUDDIN, S/O ABDUL MATALIB AGED 29 YEARS, RESIDING AT APARTMENT NO 348/C, PADA NORTH, KARUNAGAPALLY, PIN CODE NO 690544.
W.P.(C).No.18590/22 3 BY ADVS.
P.V.VENUGOPAL P.BIJIMON K.T.SEBASTIAN RESPONDENTS:
1 INSPECTOR OF POLICE (SHO), KARUNAGAPALLY POLICE STATION, PIN CODE NO 691572.
2 COMMISSIONER OF POLICE (CITY) KOLLAM PIN CODE NO 691001.
3 CHITTUMOOLA NASSAR, S/O JAMALUDEEN KUNJU, KURUDANTE AYYATHU, (LEADER HEAD LOAD WORKER INTUC), PIN CODE NO 691571.
4 YOUSUFF KUNJU, KOCHAYYATHU VEETTIL PUNNAKULAM ADINAD, (HEAD LOAD WORKER OF INTUC, KULASEKHARAPURAM BRANCH.
5 POOKUNJU, S/O PAREED KUNJU, (HEAD LOAD WORKER OF INTUC), KULASEKHARAPURAM BRANCH.
6 KERALA HEAD LOAD WORKERS WELFARE FUND BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, SRM ROAD, ERNAKULAM, KOCHI-18, PIN CODE-682 018.
BY ADVS.
T.GOPALAKRISHNAN K.SIJU OTHER PRESENT:
T.K.SHAJAHAN-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.08.2022, THE COURT ON 30.08.2022 DELIVERED THE FOLLOWING:
W.P.(C).No.18590/22 4 ANU SIVARAMAN, J.
= = = = = = = = = = = = = = = W.P.(C).No.18590 of 2022 = = = = = = = = = = = = = = = = Dated this the 30th day of August, 2022 JUDGMENT 1.This writ petition is filed seeking the following reliefs:- “i)Issue a Writ of Mandamus or any such other directions or orders commanding the respondents 1 to 2 Police Authorities to afford adequate, necessary and effective police protection to life of the petitioner enabling with incidental work of loading and unloading sophisticated articles granite, marble and kadappa slabs and tiles in their business premises of M/S “ Pioneers Tiles and Granites in building No KSP /XIV/1383 at Puthiyakavu and its branch at KSP /V/687 by engaging themselves without any interference and interruption from the respondents 3 to 5 or their supporters.
ii) To declare that the respondents 3 to 5 have no right to claim loading and unloading works in the business premises of M/S “ Pioneers Tiles and Granites either at head office or its branch and and petitioners are having every right to conduct and carry out business establishment by engaging themselves all works attached to including office works, driving, slab cutting, display works loading and unloading auxiliary works and is not bound at any point to engage any outside head load workers including respondents3 to 5 or their supporters.”
W.P.(C).No.18590/22 5 2.Heard the learned counsel for the petitioners, learned Government Pleader as well as the learned counsel appearing for respondents 3 to 5 and the learned counsel appearing for the 6th respondent.
3.It is submitted by the learned counsel for the petitioners that the petitioners 1 to 13 are partners of M/s.Pioneers Tiles and Granites, having a Head Office and branch at Puthiyakavu, Kollam. It is submitted that on 7.11.2021, the firm has started functioning in an enclosed premises with container/trailer access. It is submitted that the materials being loaded and unloaded in the premises are ceramic and granite, kadappa and marble flooring materials and slabs cladding stones etc. It is submitted that respondents 3 to 5 are obstructing and interfering with the loading and unloading works carried out by the petitioners themselves and that the complaints preferred before the police have not evoked any response. It is submitted that since the petitioners themselves are able to carry out the loading and unloading works, they do not require the assistance of pool
W.P.(C).No.18590/22 6 workers. It is submitted that the petitioners are entitled to police protection for carrying out the activities.
4.A statement has been placed on record by the standing counsel for the 6th respondent contending that the area in which the establishment of the petitioners is situated is a Scheme implemented area and that there are 16 workers having registration under Rule 26A of the Kerala Headload Workers Rules and who possess employment cards under the Scheme. It is submitted that the claim of the petitioners that the petitioners are partners of the firm is itself a completely untenable contention and that Exhibit P1 is a bogus document prepared only to deny work to the headload workers having registration under the Rules. It is submitted that Exhibit P1 itself would show that the firm is not registered and that the share holding of all the partners except the 1st and 2nd partners is 1%. It is contended that the entire exercise is intended only to defeat the claims of the pool workers. It is further contended that Exhibits P2 and P3 would show that the licences granted by the Panchayat are in
W.P.(C).No.18590/22 7 the name of Nissan Abdul Rehiman Kunju, the 1st petitioner, as a proprietary concern and none of the documents produced would show the firm is a registered firm or that the other petitioners have any manner of right or share in the profits thereof. It is, therefore, contended that under the provisions of the Headload Workers Act the petitioners cannot set up Exhibit P1 as a ruse to deny work to pool workers in the scheme covered area. It is further contended that the petitioners evidently do not have any registration under the Headload Workers Rules and that they cannot claim any benefit out of Exhibit P1, which is a sham document.
5.A detailed counter affidavit has been placed on record by respondents 3 to 5 as well. It is contended therein that Exhibit P9 judgment is not applicable in a case like the present one where the partnership deed itself is a complete sham document. It is submitted that there is a dispute pending before the competent authority under Section 21 of the Act and representations addressed to the 1st respondent
W.P.(C).No.18590/22 8 are produced by respondents 3 to 5. It is contended that the reliefs as sought for cannot be granted.
6.I have considered the contentions advanced. Exhibit P1 on which the petitioner places reliance does not show that there is a registered firm in existence. Further the shareholding of the 3rd to 14th partners is shown as 1% even in Exhibit P1.
Exhibits P2 and P3 are licences issued to Sri.Nissam Abdul Rahiman Kunju, the 1st petitioner in respect of Pioneer Tiles and Granites. The petitioner also does not have a case that any of the petitioners have registration under Rule 26A of the Kerala Headload Workers Rules. Exhibit P9 judgment of a Division Bench of this Court was specifically in respect of a partnership firm where the partners' right to carry out the loading and unloading activity was considered. In view of the specific contention raised by the respondents that Exhibit P1 is a sham document and that a dispute is pending between the parties under Section 21 of the Headload Workers Act, I am of the opinion that the reliefs as sought for cannot be granted. Any dispute in connection with employment or non-
W.P.(C).No.18590/22 9 employment or the terms of employment or with the conditions of work of any headload worker being a 'dispute' under Section 21 of the Act, the question is liable to be considered in terms of the said provision. It is for the petitioners to substantiate their contentions of bona fide existence of a partnership firm before the Assistant Labour Officer, who shall look into the matter. The prayers, as sought for in this writ petition, cannot be granted with the pleadings and materials now on record. The writ petition is, therefore, dismissed leaving open the contentions of the parties to be raised in appropriate proceedings.
sd/- Anu Sivaraman, Judge sj
W.P.(C).No.18590/22 10 APPENDIX OF WP(C) 18590/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF DEED OF PARTNERSHIP PERTAINS TO M/S "PIONEERS TILES AND GRANITES" DATED 22/09/2021 .
Exhibit P2 TRUE COPY OF TRADE LICENSE ISSUED IN FAVOUR OF M/S "PIONEERS TILES AND GRANITES" BY KULASEKHARAPURAM GRAMA PANCHAYATH FOR ITS HEAD OFFICE DATED 23.4/2022 Exhibit P3 TRUE COPY OF TRADE LICENSE ISSUED IN FAVOUR OF M/S "PIONEERS TILES AND GRANITES" BY KULASEKHARAPURAM GRAMA PANCHAYATH FOR ITS BRANCH OFFICE DATED 23.4/2022 Exhibit P4 TRUE COPY OF GST REGISTRATION PERTAINS TO M/S "PIONEERS TILES AND GRANITES" DATED 12.5.2022.
Exhibit P5 TRUE COPY OF PHOTOGRAPHS INDICATING MEDDLING WITH OBSTRUCTION BY RESPONDENTS 3-5 AND SUPPORTERS ON 13/05/2022 BY BLOCKING LORRY AND 2 CONTAINER IN BUSINESS PREMISES M/S "PIONEERS TILES AND GRANITES" Exhibit P6 TRUE COPY OF COMPLAINT DATED 13/05/2022 LODGED BEFORE 1" RESPONDENT SHO KARUNAGAPALLY ALLEGING ILLEGAL OBSTRUCTION BY RESPONDENTS AT PREMISES M/S "PIONEERS TILES AND GRANITES".
W.P.(C).No.18590/22 11 Exhibit P7 TRUE COPY OF COMPLAINT DATED 13/05/2022 LODGED BEFORE 2ND RESPONDENT COMMISSIONER OF POLICE ALLEGING ILLEGAL OBSTRUCTION BY RESPONDENTS AT PREMISES M/S "PIONEERS TILES AND GRANITES".
Exhibit P8 TRUE COPY OF CERTIFICATE ISSUED BY KULASEKHARAPURAM GRAMA PANCHAYATH PREMISES M/S "PIONEERS TILES AND GRANITES" RECORDED AS V/687 IS SITUATED AT WARD NO XIV OF KSPURAM PANCHAYATH DATED 17.5.22.
Exhibit P9 A COPY OF DIVISION BENCH JUDGMENT IN WPC.NO.37883/2018 DATED 27/03/2019 IN MUHAMMED RASHID VS COMMISSIONER OF POLICE, KOLLAM BY JUSTICE P.R.RAMACHANDRA MENON & N.ANIL KUMAR J.J CLARIFYING THAT PARTNERS ARE ENTITLED TO DO BUSINESS INCLUDING INCIDENTAL WORK.
RESPONDENT EXHIBITS Exhibit R3(A) TRUE COPY OF THE REPRESENTATION ADDRESSED TO THE 1ST RESPONDENT DATED 27/05/2022 Exhibit R3(B) TRUE COPY OF THE REPRESENTATION ADDRESSED TO THE ASSISTANT LABOUR OFFICER Exhibit R3(C) TRUE COPY OF THE REPRESENTATION ADDRESSED TO THE CHAIR PERSON OF THE 6TH RESPONDENT Exhibit R3(D) TRUE COPY OF THE IDENTITY CARDS OF THE REGISTERED WORKERS TRUE COPY PS TO JUDGE