Ratheesh M S vs. The Secretary TO The Government
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THUR AY, THE 24TH DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943 WP(C) NO. 5494 OF 2022 PETITIONER/S: RATHEESH M S S/O. MANIYAN NAIR, RESIDING AT NAGARJUNA PEARL BAY, APARTMENTS, C-BLOCK,120D, PUTHIYA ROAD, KOCHI-682 0820, MANAGING DIRECTOR, VOXXVISION VENTURES PRIVATE LTD., GROUND FLOOR, 45/1862, DEVI BUILDING, LABOUR COLONY ROAD, N.H.BYPASS, THAMMANAM, KOCHI-682 032 BY ADVS. K.REGHU KOTTAPPURAM R.MAHESH (KOTTAPPURAM) MURUKESH REGHU RESPONDENT/S: 1 THE SECRETARY TO THE GOVERNMENT LABOUR DEPARTMENT, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 THE CHAIRMAN, KERALA HEAD LOAD WORKERS WELFARE BOARD, ERNAKULAM DISTRICT COMMITTEE, (CONSTITUTED UNDER SECTION 18 OF ACT OF 20 OF 1980) KUMMANCHERRY BUILDING, T.D.ROAD, KOCHI-682 035 3 THE SECRETARY, KERALA HEAD LOAD WORKERS UNION DISTRICT COMMITTEE, POOL NO.37/(CITU) .T.U.CENTRE, VYTTILA, ERNAKULAM-682 019 BY ADV SRI.S.KRISHNA MOORTHY, SC, KHWWB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 5494 OF 2022 2 JUDGMENT Ext.P3 notice dated 30.10.2021 of the 3rd respondent ie., Secretary, Kerala Head Load Workers, Union District Committee, Pool No.37, has been challenged on behalf of the petitioner in the present writ petition.
The petitioner company is in the business of trading in Television Sets, Mobile Phones, Air conditioners, Washing Machines etc on the basis of execution of a distribution agreement with Mumbai based company M/s TT E Technology India Private Ltd., Mumbai. There is ample space for storage and handling of delicate and sophisticated articles. For movement of the same had employed permanently four persons to look after the work in the establishment including unloading and loading of sophisticated, sensitive and delicate articles. Petitioner also owns and run a sister concern in the nearby place, engaged in distribution business in Television sets namely Sky Connect Trading. Since there was an interdiction by the head load workers, the company also obtained order for police protection for loading and unloading of the delicate and sophisticated articles by the trained employees as evident from the judgment
WP(C) NO. 5494 OF 2022 3 dated 20.9.2021 in W.P.(C) No.13779 of 2021, Ext.P1. 3. Learned counsel for the petitioner submitted that on plain and simple reading of the definition of Section 2(m) of Head Load Workers Act, 1978, it can be seen that the handling of delicate or sophisticated articles are excluded from the work that could be demanded by Head Load workers. As per the Explanation II to Section 2(m), delicate or sophisticated articles means articles which are required to be handled by trained or skilled persons. The aforementioned clause came to be pondered by the Division Bench of this Court in Safa Systems & Solutions vs. Station House Officer reported in 2018 (3) KLT 9. 4. As per the judgment, Ext.P1 rendered in writ petition No.13779 of 2021, this Court, noticing all the facts, held that the petitioner would not be compelled to avail the facility of the head load workers owing to the application of the Kerala Head Load Workers (Regulation of Employment and Welfare) Scheme 1983 in respect of the Mobile Phones and other electronic articles, equipment’s/devices specified as 'fragile' or 'delicate' or 'sophisticated' by its manufacturers. In other words, liberty was granted to load and unload, with the aid of their own specialized and trained workers with the caveat that the other articles which
WP(C) NO. 5494 OF 2022 4 are not so categorized, would be obliged to employ the workers from the pool maintained by the Board. Without ascertaining the fact that the petitioner is not indulging in any other articles, the impugned notice is wholly without juri iction, arbitrary and opaque.
On the other hand, Mr.S.Krishna moorthy, learned counsel representing the respondent No.3 submitted that the writ petition is conspicuously silent about the articles other than specified as 'fragile' which would not require the loading and unloading by specialized labour. It is in that background, the notice was served for registration under the scheme. The writ petition is wholly premature as nothing prevented the petitioner to reply to the aforementioned notice with the particulars as has been urged in the present writ petition. There would have been a justification for indulgence by this Court had there been a deliberation on the list of the employees working with the employee or the detailed particulars of the articles involved in transportation (loading and unloading) with category of fragility or otherwise. In the absence of the same, the notice for registration was sine qua non, but without even responding to the same has approached the court in undue haste. The attention of
WP(C) NO. 5494 OF 2022 5 this Court was also drawn to paragraph 7 of the aforementioned scheme to contend that registration of the employers in the area who engages or employs headload workers in or for an establishment for trade or business either directly or through a contractor to register their names with the Committee along with such details and in the manner as specified by the Board within 30 days from the date of commencement of the functional operation of the Scheme in an area or within further time to be allowed by the committee not exceeding 45 days, was mandatory. It is not in doubt that the scheme is operatable/applicable in the area where the establishment of the petitioner is situated. Issuance of the notice is only as a fallout of the findings rendered in the judgment Ext.P1 and urged this Court for dismissal of the writ petition.
I have heard the learned counsel for the parties and appraised the paper book. In penultimate paragraph of the judgment in W.P.(C)No.13779 of 202 it was held as under:
However, since the petitioners say that they are willing to engage head load workers with respect to non- delicate and non-sophisticated articles, as also in the event they require additional man power, I feel it justified to dispose of these writ petitions as under:
In summation, as regards the mobile phones nd other electronic articles/equipment/devices which are specified as
WP(C) NO. 5494 OF 2022 6 being 'fragile' or 'delicate' or sophisticated' by its manufacturers, the petitioners will be at liberty to have them loaded and unloaded with the aid of their own specialized and trained workers; but with respect to other articles, which are not so categorized, they will be obliged to employ the workers from the Pool aintained by the Board,because it is without contest in these cases that the areas where the petitioners businesses are being carried on are covered by the Scheme under the Act. In the light of the afore observations and declarations, I allow these writ petitions directing the Station House Officers of the Police Station, within whose juri iction the petitioner establishments are located, to afford adequate and effective protection to them and their employees for loading and unloading of mobile phones,electronic articles / appliances /equipment and such other 'fragile, delicate and sophisticated' ones, as are so specified by the manufacturers, without any let or interference from the party respondents or their men.
On perusal of the aforementioned findings, the petitioner had expressed willingness to engage head load workers with respect to non delicate and non sophisticated articles or in the event of requiring additional power. The issuance of the notification Ext.P3 was in compliance of the judgment of this Court. If at all, the petitioner was aggrieved, that they had not employed any other workers except the four mentioned in the present writ petition. The notice impugned could have been very well replied as sufficient time is provided in view of the provisions of Section 7 of the scheme. But without following such procedure,
WP(C) NO. 5494 OF 2022 7 approached this Court. The invocation of the juri iction of Article 226 at the drop of the hat by litigant, who had already been perpetually approaching this Court as evident from the pleadings, is not to be encouraged; otherwise the departments dealing with applicability of the laws and the statutes would be totally handicapped in not achieving the purpose for which the legislation was enacted. The present case also falls within the parameters of the findings rendered above.
As an upshot of my findings, I direct the petitioner to furnish the particulars of the employees working in the establishment in response to the notice Ext.P3 and in case the aforementioned information provided is found to be sufficient, the respondent would take a call of either insist for registration or withdraw notice under challenge and if not satisfied, with advance intimation to the petitioner the respondent would inspect the premises of the petitioner to find out the veracity of the information supplied by the petitioner. On analysis of the information, in case it is found that the petitioner has employed only skilled workers for loading and unloading of the articles certified by the manufacturers to be fragile, of course there would not be any requirement of registration with the head load workers
WP(C) NO. 5494 OF 2022 8 and if otherwise, the compliance of the provisions as referred in the notice are inevitable. With the aforementioned observations, the writ petition stands disposed of. Let the aforementioned exercise be undertaken within a period of 45 days from the date of receipt of a copy of this judgment. sab AMIT RAWAL JUDGE
WP(C) NO. 5494 OF 2022 9 APPENDIX OF WP(C) 5494/2022 PETITIONER EXHIBITS Exhibit P1 A PHOTO COPY OF JUDGMENT DATED 9.9.2021 IN WPC 13779/2021 Exhibit P2 A PHOTOCOPY OF GST REGISTRATION VIDE NO.32 AAHCV9808R121 DATED 23.6.2021 Exhibit P3 A PHOTOCOPY OF NOTICE NO.D1-768/16 DATED 30.10.2021 ISSUED BY 3RD RESPONDENT TO THE PETITIONER WITH ENGLISH TRANSLATION Exhibit P4 A PHOTOCOPY OF ORDER DATED 4.4.2019 IN SLP NO.(S) 26942/2017 Exhibit P5 A PHOTOCOPY OF JUDGMENT DATED 206.2017 IN WPC NO.37842/2016 OF THE DIVISION BENCH
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.