Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 12TH DAY OF AUGUST 2022 / 21ST SRAVANA, 1944 WP(C) NO. 27873 OF 2020 PETITIONER:
KAKKERI TILES FACTORY LLP, 1ST FLOOR, 3/332J, PARAMBAN TOWER, NH BYPASS, RAMANATTUKARA, KOZHIKODE, KERALA-67363, REPRESENTED BY ITS MANAGING PARTNER, ANEES BABU, AGED 43 YEARS, S/O.KAKKERI ABDULA, RESIDING AT KAKKERI HOUSE, PANTHRADINGAL, KAVANOOR P.O., 673639, MALAPPURAM.
BY ADVS.
LEGITH T.KOTTAKKAL S.SREEKUMAR (SR.)
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 STATE POLICE CHIEF, KERALA STATE POLICE QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, KERALA-695010.
3 DISTRICT POLICE CHIEF, WAYANAD, OFFICE OF DISTRICT POLICE CHIEF, KALPETTA-673121.
4 STATION HOUSE OFFICER, KALPETTA POLICE STATION, KALPETTA-673121.
5 THE KERALA HEAD LOAD WORKERS WELFARE BOARD, SRM ROAD, ERNAKULAM NORTH, KALOOR, ERNAKULAM, KERALA-682018, REPRESENTED BY ITS CHAIRMAN.
6 THE KERALA HEAD LOAD WORKERS WELFARE BOARD, WAYANAD DISTRICT COMMITTEE, PALAKKUNNEL BUILDING, MUNDERY ROAD, ANAPPALAM JUNCTION, KALPETTA-673121, REPRESENTED BY ITS DISTRICT SECRETARY.
7 SWATHANTHRA THOZHILALI UNION (STU), MUTTIL BRANCH, NEAR INDIAN UNION MUSLIM LEAUGE OFFICE, MUTTIL, KALPETTA-673122, REPRESENTED BY ITS SECRETARY.
8 ADDL.R8: LOADING AND UNLOADING UNION (HMS) MUTTIL BRANCH, MUTTIL P.O., WAYANAD-673122, REPRESENTED BY ITS PRESIDENT ABOOBAKKAR, RESIDING AT PARACKAL, MANDAD PO, MUTTIL, WAYANAD-673122 (IS IMPLEADED AS PER ORDER DATED 29.06.2022 IN I.A.
NO.3/2022)
WP(C) NO. 27873 OF 2020 2 BY ADVS.
THOMAS ABRAHAM ANIL K.NAIR ASWIN.P.JOHN T.K.SHAJAHAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.07.2022, THE COURT ON 12.08.2022 DELIVERED THE FOLLOWING:
WP(C) NO. 27873 OF 2020 3 ANU SIVARAMAN, J = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.27873 of 2020 = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12th day of August, 2022 JUDGMENT Heard the learned senior counsel appearing for the petitioner, the learned Government Pleader, the learned standing counsel appearing for respondents 5 and 6 as well as the learned standing counsel appearing for respondents 7 and 8.
2.
This writ petition is filed seeking directions to the 4th respondent to afford adequate police protection to the life of the partners, employees, vehicles, properties and business premises of the petitioner from threat of the 7th respondent or any persons claiming under them. The contention of the petitioner is that the petitioner is a partnership firm engaged in the business of trade in tiles, sanitary wares, fittings and accessories. Ext.P1 is the Certificate of Incorporation. It is contended that the petitioner is having places of business in several parts of Malabar and has a GST Registration which
WP(C) NO. 27873 OF 2020 4 is produced as Ext.P2.
3.
The places of business of the petitioner are stated in the writ petition as follows:
“a. Kalathingal Building, Kakkancheri-Pallikkal Bazar Road, Kakkancheri, Malappuram, Kerala, 673634 b. Feroke, Petta, Feroke, Kozhikode, Kerala, 673632 c. Kakkavayal, Near Kakkavayal Junction, Nh 766, Meenangadi, Wayanad, Kerala, 673122 d. Sultan Bathery Road, Muttil, Wayanad, Kerala, 673122” 4.
It is contended that the predominant activity in the petitioner’s establishment is not loading and unloading. The petitioner has permanent employees who have special training for handling, segregating and stacking of tiles and their duties includes interaction with customers, sale of the items etc. It is submitted that the petitioner has obtained registration under Rule 26A of the Kerala Headload Workers Rules 1981 for 7 of its employees and Ext.P3 are the identity cards of the employees. It is contended that when the petitioner attempted to do the loading and unloading work at the Muttil premises of the petitioner with the registered headload workers of the
WP(C) NO. 27873 OF 2020 5 establishment, there was obstruction from the 7th respondent and that the members of the 7th respondent are threatening the workers and managerial staff of the petitioner and raising illegal demands. Ext.P4 licence issued by the Muttil Grama Panchayat for the business premises of the petitioner is produced and it is contended that the petitioner is entitled to carry out the loading and unloading activities in all of its premises with the registered headload workers of the establishment. It is contended that complaints submitted by the petitioner before the police have not evoked any response which has prompted the petitioner to approach this Court.
5.
A statement has been placed on record on behalf of respondents 5 and 6 wherein it is contended that the entire Wayanad District was notified as a scheme implemented area with effect from 01.03.2008 and there are 10 registered workers in the area under the ML pool of the Board for doing loading and unloading work in the pool area which includes Muttil Town and Muttil-Kalpetta road till Kainattil. It is submitted that the petitioner’s premises covered by Ext.P4 comes within the said area. It is submitted that on the basis of a complaint
WP(C) NO. 27873 OF 2020 6 received from the ML pool leader, on 20.10.2020, a meeting was held by the District Labour Officer which was attended by the partners of the petitioner establishment. It is contended that the 7 permanent workers who have registration under Rule 26A are attached to another establishment owned by the petitioner and not to the establishment in question. It is submitted that there is admittedly no permanent attached worker for the petitioner establishment and the area wherein the petitioner’s establishment is functioning, being a scheme implemented area, the petitioner has to engage the pool workers for loading and unloading activities.
6.
The learned counsel for the 7th respondent also contends that the registration is admittedly for the headload workers in respect of a separate establishment in a separate scheme covered area and that the petitioner has no case that the establishment for which registration has been obtained has either closed on or being shifted. It is contended that the establishment for which police protection is sought for is a separate and distinct establishment and that the petitioner cannot seek the prayers as sought for in the writ petition. It is contended that the
WP(C) NO. 27873 OF 2020 7 authority issuing the registration and the area for which the registration is granted are sacrosanct in terms of the Act and that one registering authority has no jurisdiction over any area outside the area where his jurisdiction extends. Relying on Sections 25 and 26 and Rule 26A and Form 11, the learned counsel would contend that the registration is specifically for an establishment and for an area and that the same owners having different and distinct establishments cannot contend that they require to register their workers only in one establishment and can carry out loading and unloading activity all over the State and beyond on the basis of the said registration.
7.
I have considered the contentions advanced on all sides. The decision of this Court in Pareeeth v. Sub Inspector of Police [2003 KHC 380] dealt with the case where the establishment itself was shifted to a new premises and the employer contended that the loading and unloading was being carry out by his permanent registered workers. It was in the above circumstances that it was held that the attached registered headload workers cannot be denied employment merely by reason of the employer shifting his establishment to a new
WP(C) NO. 27873 OF 2020 8 premise and that such workers would not require any fresh registration.
8.
In Eastern Condiments (P) Ltd. v. Sub Inspector of Police [2012 KHC 2597], the question was whether the employees who were engaged by the establishment for the loading and unloading work in connection with the establishment could be obstructed by pool workers on the ground that they did not have a registration to work in the area where loading and unloading activity was carried out. This Court held that only because the loading and unloading activity was being carried out in a different area, the employees of the establishment who have due registration cannot be prevented from doing the activity because the activity was being done on behalf of the establishment by its permanent registered workers.
9.
In K.K.Issac and Company and another v. District Police Chief, Aluva and others [2020(2) KHC 190] the question was whether an employer who is having more than one establishment is required to register the headload workers used in the establishments in
WP(C) NO. 27873 OF 2020 9 all the places where such branches or establishments are operated.
This Court, after considering the contentions held as follows:- “ 6.As per S.3(j)(sic) of the Kerala headload Workers Act, an "establishment" means, an establishment specified in the Schedule and includes the precincts thereof. Therefore, an establishment cannot be understood to mean within the narrow geographical location. The establishment has to be understood based on a systematic activity being carried out and operated by an entity or a person within the geographical area or beyond. If an activity of the establishment extends beyond a location where it is registered, that does not mean that the establishment cannot engage its own permanent employees for loading and unloading.
The registration of headload workers is not vis - a - vis location but vis - a - vis establishment. Therefore, if the permanent headload workers are engaged by the establishment for its activities, no one can object to such engagement.” Relying on Rule 27 and paragraph 7 of Scheme, it was held that an establishment which is having permanent employees is bound to maintain the register of such employees, wherever they are engaged.
The establishment is also bound to intimate the Assistant Labour Officer concerned in regard to the engagement of such headload workers, if the Assistant Labour Officer is not the original authority that granted the registration. The Assistant Labour Officer is bound to verify the identity of the person engaged by every employer.
10.
However, in the instant case, the contention of the Board and
WP(C) NO. 27873 OF 2020 10 the contesting party respondents is that the 7 permanent workers of the petitioner who have registration under Rule 26A are attached to another establishment owned by the petitioner and not to the establishment in question. The petitioner is having places of business in several parts of Malabar and is seeking to carry out the activities everywhere with the same permanent workers. Though the petitioner has raised a contention that loading and unloading work is not the predominant activity in the petitioner’s establishments, since the petitioner admits that the petitioner has obtained registration in respect of his workers under Rule 26A of the Kerala Headload Workers Rules, the said contention does not require to be considered in this writ petition.
11.
In the above circumstances, I am of the opinion that the contentions raised by the respondents requires a consideration. Since the question whether the establishment is a separate and distinct establishment is in dispute, I am of the opinion that the issue is a dispute as contemplated under Section 21 of the Kerala Headload Workers Act. The parties may approach the conciliation officer for
WP(C) NO. 27873 OF 2020 11 resolution of the dispute under Section 21. However, till such time as the dispute is resolved and the matter is settled, the party respondents shall not create law and order situations or attack the workers of the petitioner in any manner. In case of any illegal obstruction or attack, the petitioner may inform the Station House Officer, who shall afford protection to the life of the petitioner and his registered workers.
Further action shall be subject to the order to be passed by the competent authority under Section 21 of the Act.
This writ petition is ordered accordingly.
Sd/-
ANU SIVARAMAN JUDGE NP
WP(C) NO. 27873 OF 2020 12 APPENDIX OF WP(C) 27873/2020 PETITIONER’S EXHIBITS EXHIBIT P1 COPY OF THE FRESH CERTIFICATE OF INCORPORATION DATED 26.2.2016 ISSUED BY MINISTRY OF CORPORATE AFFAIRS.
EXHIBIT P2 TRUE COPY OF THE GST REGISTRATION CERTIFICATE NO.32AAKFT3187H1Z0 OF THE PETITIONER.
EXHIBIT P3 IDENTITY CARD OF 7 EMPLOYEES OF THE EMPLOYEES WHO ARE HAVING REGISTRATION UNDER RULE 26 A OF THE KERALA HEADLOAD WORKERS ACT RULES 1981 EXHIBIT P4 TRUE COPY OF THE LICENSE ISSUED BY THE MUTTIL GRAMA PANCHAYATH TO THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE COMPLAINT AND RECEIPT DATED 8.12.2020 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 26.7.2018 IN WP(C)22647 OF 2018.
RESPONDENTS’ EXHIBITS Exhibit R7(a) TABULATED LIST OF REGISTERED HEADLOAD WORKERS REPRESENTED BY THE UNION.