Abraham Skaria M.S. vs. The Station House Officer & Circle Inspector Of Police - Kerala High Court, 12 January 2022

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNE AY, THE 12TH DAY OF JANUARY 2022 / 22ND POUSHA, 1943 WP(C) NO.28403 OF 2021 PETITIONER :- ABRAHAM SKARIA M.S., AGED 60 YEARS S/O.SKARIA, PROPRIETOR, MASCO CEMENTS AND STEELS, MASCO COMPLEX, NH 85, THONNIKKA, KOLENCHERY, ERNAKULAM DIST., PIN - 682 311 RESIDING AT MUTHIRAMATTATHIL, KARUKAPPILLY P.O., KOLENCHERY, ERNAKULAM DIST., PIN - 682 311. BY ADVS. V.J.JAMES ABRAHAM P.GEORGE K.A.HAZAN M.M.FATHIMA JALEENA K.P.WILSON ARUN PAUL (KAPRASSERY) RESPONDENTS :- 1 THE STATION HOUSE OFFICER & CIRCLE INSPECTOR OF POLICE PUTHENCRUZ POLICE STATION, PUTHENCRUZ P.O., ERNKAULAM DIST., PIN - 682 308. 2 THE DISTRICT POLICE CHIEF ALUVA RURAL, ALUVA, ERNAKULAM DISTRICT, PIN- 683 101. 3 THE CHAIRMAN KERALA HEAD LOAD WORKERS WELFARE BOARD, SUB COMMITTEE OFFICE, PUTHENCRUZ P.O., ERNAKULAM DIST., PIN - 682 308. 4 P.V.KUTTAN, AGED 52 YEARS S/O.VAYARONI, POOL LEADER, POOL NO.20, RESIDING AT PANDARAMOLEL, PALAKKAMATTOM, KOLENCHERRY, ERNAKULAM DIST., PIN - 682 311. 5 BABU P.P., AGED 46 YEARS S/O.PATHROSE, POOL LEADER, POOL NO.21, PANDALIPARAMBIL HOUSE, KINGINIMATTOM, KOLENCHERRY, ERNAKULAM DIST., PIN- 682 311. WP(C) NO.28403 OF 2021 -: 2 :- 6 THE SECRETARY ERNAKULAM DISTRICT HEAD LOAD WORKERS UNION, INTUC, KODIYAMPARAMBIL BUILDINGS, KOLENCHERY, ERNAKULAM DIST., PIN - 682 311. 7 THE SECRETARY ERNAKULAM DISTRICT HEAD LOAD AND GENERAL WORKERS UNION, CITU, AKG BHAVAN, KOLENCHERY, ERNAKULAM DIST., PIN - 682 311. 8 THE ASST. LABOUR OFFICER PERUMBAVOOR, ERNAKULAM DIST., PIN - 683 542. 9 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVT., HOME DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM, PIN - 695 001. BY ADVS. SRI.S.KRISHNA MOORTHY, SC, KHWWB SRI.PAUL K.VARGHESE SRI.A.A.GEETHA SRI.T.SHAJAHAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO.28403 OF 2021 -: 3 :- JUDGMENT Dated this the 12

th day of January, 2022 This writ petition is filed seeking the following reliefs :- “(i) Issue a Writ of Mandamus or such other Writ, Order or Direction compelling Respondents 1 & 2 to remove the illegal and forcible obstructions from the part of 4th to 7th Respondents and their supporters, to the loading and unloading works in the establishment of the petitioner. (ii) Issue a Writ of Mandamus or such other Writ, Order or Direction to the 1st and 2nd respondents to extend adequate and effective police protection to the petitioner and 7 registered attached head load workers to carry out the loading and unloading work in the establishment of the petitioner.”

Heard the learned counsel for the petitioner, the learned Government Pleader and the learned Standing Counsel appearing for the 3rd respondent as well as the learned counsel appearing for respondents 4 to 7. 3. The learned counsel for the petitioner submits that the petitioner has a shop in Karukappilly, Kolencherry and has engaged ten registered head load workers for the purpose of loading and unloading in the said premises. It is stated that a branch was established at Thonnikka, about 4 kms away and that some of the registered head load workers have been

WP(C) NO.28403 OF 2021 -: 4 :- transferred to the said shop. It is submitted that respondents 4 to 7 have obstructed the loading and unloading work conducted by the registered head load workers attached to the petitioner and that the petitioner is entitled to police protection to carry out the loading and unloading activities with registered head load workers engaged by him.

A detailed counter affidavit has been placed on record by respondents 4 to 7. It is contended that the petitioner has expanded his business and would obviously be unable to carry out the loading and unloading works involved in both the premises with the registered head load workers allegedly engaged by him. It is submitted that the petitioner is, therefore, using unregistered workers for the loading and unloading work in his premises and that the respondents are, therefore, entitled to be engaged as and when work is available and the duly registered head load workers engaged by the petitioner are found insufficient to carry out the said work.

The learned Standing Counsel appearing for the 3rd respondent would also contend that the petitioner can carry out the activities only by engaging registered head load workers and that in case the registered head load workers, who are employed

WP(C) NO.28403 OF 2021 -: 5 :- by the petitioner, are found to be insufficient, then the work has to be carried out by registered head load workers in the respective areas.

The learned counsel for the petitioner submits that he is carrying out the activity only with the registered head load workers employed by him and if there is requirement for any further workers, he will obtain registration for further employees as required by law and that he will not carry out any loading or unloading activity with unregistered workers. Having considered the contentions advanced on all sides, I am of the opinion that the petitioner has the right to carry out the loading and unloading work in his premises with his statutorily registered employees. However, I make it clear that the loading and unloading activity cannot be carried out with unregistered workers. The 8th respondent shall carry out an inspection in the premises to ensure that the loading and unloading work is being carried out only by registered head load workers who are employed by the petitioner. In case the party respondents have any contention that the petitioner is engaging unregistered workers, they shall approach the 8th respondent with the details, which shall also be duly considered. In case the

WP(C) NO.28403 OF 2021 -: 6 :- petitioner is employing registered head load workers for the works in question, he shall be permitted to carry out the activity and appropriate protection shall be granted for the same. This writ petition is ordered accordingly. ANU SIVARAMAN

JUDGE Jvt/12.1.2022

WP(C) NO.28403 OF 2021 -: 7 :- APPENDIX OF WP(C) 28403/2021 PETITIONER EXHIBITS Exhibit P1OF THE LICENCE NO.342/2021- 2022/A4/A8/3319/21-22 DATED 01/09/2021 ISSUED BY THE SECRETARY POOTHRIKKA GRAMA PANCHAYATH TO THE PETITIONER. Exhibit P2OF THE ORDER NO.HLW-779/12/2019 DATED 05/02/2020 AS PER WHICH THE REGISTRATION GRANTED TO THE FOUR HEAD LOAD WORKERS. Exhibit P3OF THE ORDER NO.HLW 576/10/2020 DATED 02/02/2021 OF THE ASST. LABOUR OFFICER, PERUMBAVOOR AS PER WHICH THE REGISTRATION GRANTED TO THE SEVEN HEAD LOAD WORKERS OF THE PETITIONER. Exhibit P4OF THE EMPLOYMENT-CUM-WAGES REGISTER IN FORM NO.V FOR THE WEEK ENDING ON 04/12/2021 MAINTAINED BY THE PETITIONER. Exhibit P5OF THE WAGES SLIP ISSUED TO ONE OF THE WORKER, SRI.THUSHAR MISTRY FOR THE WEEK ENDING ON 04/12/2021. Exhibit P6OF THE CERTIFICATE OF REGISTRATION NO.SHO70810150831 DATED 16/12/2019 ISSUED BY THE 8TH RESPONDENT. Exhibit P7OF THE GST REGISTRATION CERTIFICATE NO.32AKYPM 1664N22ZF DATED 28/11/2019. Exhibit P8OF THE CERTIFICATE OF REGISTRATION NO.SHO 70810110501 DATED 19/11/2021 ISSUED BY THE 8TH RESPONDENT APPROVING TRANSFER OF HEAD LOAD WORKERS. Exhibit P9OF THE IDENTITY CARD RECEIVED FROM THE 8TH RESPONDENT TO SRI.THUSHAR MISTRY, HAVING IDENTITY CARD NO.07/07/41/2020 DATED 05/02/2020. WP(C) NO.28403 OF 2021 -: 8 :- Exhibit P10OF THE IDENTITY CARD RECEIVED FROM THE 8TH RESPONDENT BY SRI.NEMAI MASTRY, HAVING IDENTITY CARD NO.07/07/42/2020 DATED 05/02/2020. Exhibit P11OF THE IDENTITY CARD RECEIVED FROM THE 8TH RESPONDENT BY SRI.AMAL PRAMANIK, HAVING IDENTITY CARD NO.07/07/44/2020 DATED 05/02/2020. Exhibit P12OF THE IDENTITY CARD RECEIVED FROM THE 8TH RESPONDENT BY SRI.AMIT MANDAL HAVING IDENTITY CARD NO.07/07/02/2021 DATED 02/02/2021. Exhibit P13OF THE IDENTITY CARD RECEIVED FROM THE 8TH RESPONDENT BY DIPAK MANDAL, HAVING IDENTITY CARD NO.07/07/03/2021 DATED 02/02/2021. Exhibit P14OF THE IDENTITY CARD RECEIVED FROM THE 8TH RESPONDENT BY SUBHA MANDAL, HAVING IDENTITY CARD NO.07/07/05/2021 DATED 02/02/2021. Exhibit P15OF THE IDENTITY CARD RECEIVED FROM THE 8TH RESPONDENT BY SWAPANMANDAL HAVING IDENTITY CARD NO.07/07/06/2021 DATED 02/02/2021. Exhibit P16OF THE COMPLAINT DATED 06/12/2021 FILED BEFORE THE STATION HOUSE OFFICER, PUTHENCRUZ BY THE PETITIONER. Exhibit P17OF THE RECEIPT NO.180418/2021 DATED 06/12/2021 ISSUED FROM THE PUTHENCRUZ POLICE STATION ACKNOWLEDGING RECEIPT OF THE COMPLAINT. RESPONDENTS' EXHIBITS :- EXHIBIT R5(a) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.V.G.ASOKAN DATED 29.9.2003. WP(C) NO.28403 OF 2021 -: 9 :- EXHIBIT R5(a1) :OF THE IDENTITY CARD ISSUED BY KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.KUTTAN DATED 29.9.2003. EXHIBIT R5(b) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.P.K.SHIBU DATED 10.7.2004. EXHIBIT R5(c) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.A.T.KURIACHAN DATED 10.7.2005. EXHIBIT R5(d) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.SURESH DATED 16.9.2019. EXHIBIT R5(e) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.MANI K.K. DATED 1.3.2012. EXHIBIT R5(f) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.BIJU DATED 16.9.2017. EXHIBIT R5(g) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.BENNY K.K. DATED 1.3.2012. EXHIBIT R5(h) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.AJESH DATED 25.9.2019. EXHIBIT R5(i) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.P.C.BABU DATED 1.2.2018. EXHIBIT R5(j) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.SHAJI DATED 16.9.2017. EXHIBIT R5(k) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.SUNNY DATED 30.9.2008. EXHIBIT R5(l) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.SABU

WP(C) NO.28403 OF 2021 -: 10 :- VARGHESE DATED 1.3.2012. EXHIBIT R5(m) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.SUDEESH C.K.DATED 1.2.2018. EXHIBIT R5(n) :OF THE IDENTITY CARD ISSUED BY THE KERALA KEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.VIJAYAN DATED 1.11.2016. EXHIBIT R5(o) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.RAJU DATED NIL. EXHIBIT R5(p) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.PRAKASH DATED 28.10.2014. EXHIBIT R5(q) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.BABU DATED 19.2.1999. EXHIBIT R5(r) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.DEVASSIA V.J DATED 1.8.2012. EXHIBIT R5(s) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.ELDHO A.V. DATED 11.11.2016. EXHIBIT R5(t) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.ANIL A.V. DATED 1.2.2019. EXHIBIT R5(u) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.BENNY DATED 29.9.2003. EXHIBIT R5(v) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.SAJEEVAN DATED 30.9.2008. EXHIBIT R5(w) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.ANOOP M. DATED 20.1.2017. WP(C) NO.28403 OF 2021 -: 11 :- EXHIBIT R5(x) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.VIJAYAN DATED 1.8.2012. EXHIBIT R5(y) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.SHAJAN JOSEPH DATED NIL. EXHIBIT R5(z) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.SHAJI C.K. DATED 3.3.2014. EXHIBIT R5(z1) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.ASHLY DATED 31.3.2014. EXHIBIT R5(z2) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.ANIL KUMAR DATED 25.9.2019. EXHIBIT R5(z3) :OF THE IDENTITY CARD ISSUED BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD TO SRI.JOJO JOSEPH DATED 6.2.2019.