Abdul Samad vs. The Inspector Of Police
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THUR AY, THE 21ST DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 WP(C) NO. 13448 OF 2021 PETITIONERS: 1 ABDUL SAMAD AGED 50 YEARS S/O. ABUBHAKAR, CHIRAYILAAN HOUSE, VENGOLA VILLAGE, VENGOLA KARA, P. O. ALLAPRA, PERUMPAVOOR - 683553, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 2 HITECH PLASTICS 7/77, SADDAM ROAD, KANDAMTHARA, ALLAPRA P. O., REPRESENTED BY ITS PROPRIETOR, SRI. SUHAS, AGED 30 YEARS, S/O. SEYDALI, THANELIL HOUSE, MALAYATOOR VILLAGE, ILLITHODU KARA, ALUVA TALUK, NOW RESIDING AT MUDIKKAL P. O., PERUMPAVOOR - 683547., ERNAKULAM DISTRICT. BY ADV SIRAJ KAROLY RESPONDENTS: 1 THE INSPECTOR OF POLICE PERUMPAVOOR, OFFICE OF THE INSPECTOR OF POLICE, POLICE STATION COMPLEX, POST OFFICE ROAD, PERUMPAVOOR - 683542, ERNAKULAM DISTRICT. 2 THE DEPUTY SUPERINTENDENT OF POLICE PERUMPAVOOR, OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, POLICE STATION COMPLEX, POST OFFICE ROAD, PERUMPAVOOR - 683542, ERNAKULAM DISTRICT. 3 DISTRICT POLICE CHIEF ERNAKULAM RURAL, OFFICE OF THE DISTRICT POLICE CHIEF, POWER HOUSE JUNCTION, ALUVA - 683101, ERNAKULAM DISTRICT. 4 THE ASSISTANT LABOUR OFFICER OFFICE OF THE ASSISTANT LABOUR OFFICER, MINI CIVIL STATION BUILDING, PERUMPAVOOR - 683542, ERNAKULAM DISTRICT. 5 KERALA HEAD LOAD WORKERS
WP(C) NO. 13448 OF 2021 2 WELFARE BOARD DISTRICT COMMITTEE, REPRESENTED BY ITS CHAIRMAN, OFFICE OF THE KERALA HEAD LOAD WORKERS WELFARE BOARD DISTRICT COMMITTEE, MARKET ROAD, ERNAKULAM, KOCHI - 35, ERNAKULAM DISTRICT- 682035 6 KERALA HEAD LOAD WORKERS WELFARE BOARD SUB COMMITTEE, PERUMPAVOOR (KUNNATHUNADU TALUK), REPRESENTED BY ITS CONVENER, OFFICE OF THE KERALA HEAD LOAD WORKERS WELFARE BOARD, SUB COMMITTEE, MINI CIVIL STATION BUILDING, PERUMBAVOOR - 683542, ERNAKULAM DISTRICT. 7 CENTER OF INDIAN TRADE UNION (CITU) KANDANTHARA UNIT POOL NO.185A, REPRESENTED BY ITS SECRETARY, M. V. MOHANAN, MANAVALATHU HOUSE, KANDANTHARA, P. O. ALLAPRA, PERUMPAVOOR - 683553, ERNAKULAM DISTRICT. 8 INDIAN NATIONAL TRADE UNION CONGRESS (INTUC) KANDATHRA UNIT POOL NO.185B, REPRESENTED BY ITS SECRETARY, K. M. KAREEM, S/O. MYDEENKUNJU, KAROTHUKUDI HOUSE, KANDANTHARA, ALLAPRA P. O., PERUMPAVOOR - 683553, ERNAKULAM DISTRICT. 9 DISTRICTG LABOUR OFFICER, ERNAKULAM DISTRICT LABOUR OFFICE, CIVIL STATION, KAKKANAD, COCHIN - 682030, ERNAKULAM DISTRICT. BY ADVS. SRI.S.KRISHNA MOORTHY, SC, KHWWB C.S.AJITH PRAKASH MARIAMMA MERCY KANJANAPILLY T.K.DEVARAJAN PAUL C THOMAS FRANKLIN ARACKAL M.B.SOORI BABU M. NIDHIN RAJ VETTIKKADAN HAARIS MOOSA NIKHITA ANN REBELLO ADESH JOSHI
WP(C) NO. 13448 OF 2021 3 OTHER PRESENT: SRI.E C.BINEESH - GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 13448 OF 2021 4 JUDGMENT The second petitioner is stated to be an entity engaged in the manufacturing processes involving plastic scrap and waste and they say that they have established their factory in a property taken on lease from the first petitioner.
As per the second petitioner, they have four permanent regular employees on their pay-roll, who have obtained statutory registration under the provisions of the Kerala Headload Workers Act, as is evident from Ext.P7 series; but that respondents 7 to 9 Unions are nevertheless, obstructing their loading and unloading activities, claiming exclusive right to do so. They say that, therefore, they had no other option but, to approach the 1st respondent - Inspector of Police seeking protection, through Ext.P10; but that since no action has taken thereon, they have been constrained to move this Court through this writ petition.
WP(C) NO. 13448 OF 2021 5
Sri. Ajith Prakash - learned counsel appearing for respondents 7 and 8, submitted that a counter affidavit has been filed on record, wherein, his clients have clearly averred that there is no material on record to show that the persons mentioned in Ext.P7 series of identity cards are engaged as regular workers. He asserted that his clients have reliable information that the said employees are being engaged by the petitioner for other purposes also, and therefore, that they cannot be construed as headload workers, as has now been asserted by the petitioner.
Sri. Ajith Prakash, thereafter, submitted, that the applications of four persons mentioned in Ext.P7 series were made only on 12/02/2021; and alleged that, as evidenced from Ext. R8(c) report, the Registering Authority did not conduct proper enquiry in this matter, which is unmistakable from the fact that a hearing was conducted on 10/05/2021, while the physical inspection was
WP(C) NO. 13448 OF 2021 6 conducted on 25/06/2021. He added that the afore physical inspection do not disclose the detail of the Registers and documents, which ought to have been looked into by the Registering Authority and that, registrations have been granted to the persons mentioned in Ext.P7 series without any statement given by the employer. He thus, vehemently argued that, notwithstanding Ext.P7 series of identity cards, the petitioner cannot engage their own employees for the purpose of loading and unloading activities in the business run by the second among them, because such employees are not headload workers. Sri. Ajith Prakash thus prayed that this writ petition be dismissed.
Sri.S. Krishnamoorthy – learned Standing Counsel appearing for the 5th respondent – Headload Workers Welfare Fund Board (hereinafter referred to as the ‘Board’ for short), admitted that there is no inhibition in the Headload Workers Act, which prevents the employer
WP(C) NO. 13448 OF 2021 7 from using his own statutorily registered permanent employees for extra works other than loading and unloading. He, however, argued that it is incumbent upon the employer to approach the competent Authority for exemption from the provisions of the Headload Workers Act, on the strength of all relevant germane documents and materials; and added that this does not appear to have been done by the petitioners in this case. He also thus prayed that this writ petition be dismissed.
Sri E.C. Bineesh - learned Government Pleader appearing on behalf of respondents 1 to 4, submitted that in obedience to the interim order of this Court granted earlier, the police have ensured that law and order has been maintained in the business premises of the second petitioner; and that no one, including the party respondents or their men, have been allowed to breach peace in any manner.
The afore rival contentions of the parties being so
WP(C) NO. 13448 OF 2021 8 recorded, it is obvious that the party respondents-Unions take the stand that the registration granted to the persons mentioned in Exts.P7 series of identity cards, has been done without following due procedure; and that the Registering Authority was in error in having issued the same. They allege that neither did the said Authority conduct proper enquiry, nor inspect the Registers mandatorily to be maintained by the employer and consequently, that the registrations, must be declared to be vitiated.
Pertinently, however, the 5th respondent – Board has impelled no case against Ext.P7 series, but they only say that the employer ought to have approached the competent Authority for exemption from the provisions of the Headload Workers Act, based on relevant documents and materials.
That being said, it is apodictic that, as far as registration of the persons mentioned in Ext.P7 is
WP(C) NO. 13448 OF 2021 9 concerned, unless the party respondents challenge it appropriately and are able to have the same set aside, they cannot urge the contentions as has been recorded above, particularly that the Registering Authority had not conducted proper enquiry, because when an official act has been completed, it has to be presumed that enquiry has been done as per law. It is certainly for the party respondents to rebut this presumption through cogent and reliable evidence; but this has not been done yet.
I cannot, therefore, understand how the party respondent-Unions can now take a stand that, notwithstanding Ext.P7 series of identity cards and registrations, petitioners cannot engage their own employees.
That said, the question whether the persons covered by Ext.P7 series are regular employees or otherwise is one fact, which will require to be raised for adjudications by the party respondents before the
WP(C) NO. 13448 OF 2021 10 competent Authority, if they are so interested. Unless they do so this Court cannot presume that said persons are not regular employees on the pay-roll of the petitioners, or that they are not entitled to be considered as headload workers, under the provisions of the Kerala Headload Workers Act.
Coming to the contentions of Sri. S. Krishnamoorthy, if the Board has any objection relating to the Registers maintained by the petitioners, it is up to them to invoke the applicable provisions of the Kerala Headload Workers Act. For such purpose the above being said, even though petitioner has brought on record all the relevant Registers as Exts.P12 and P13, no objections have been raised against the same by any of the respondents before this Court. In the afore circumstances, I order this writ petition and direct the first respondent to afford adequate and effective protection to the petitioners and to their
WP(C) NO. 13448 OF 2021 11 employees covered by Ext.P7 series of identity cards for carrying out the loading and unloading activities in the establishment of the second petitioner, without any let or interference from any person, including respondents 7 to 9 or their men or associates or members. The first respondent will also ensure that law and order is maintained in the area where the second petitioner is carrying on their business; and that no one, including the party respondents, are allowed to breach peace in any manner in future. It is needless to say that all the remedies available in law to respondents 7 and 8 are reserved, to be pursued by them, including against Ext.P7 registration; for which purpose, all their contentions are left open. It also goes without saying that the 5th respondent - Board will be at full liberty to invoke any measure, step or remedy available to them under the provisions of the Headload Workers Act, in the event they obtain any
WP(C) NO. 13448 OF 2021 12 reason to suspect that the persons registered through Ext.P7 series are not engaged but others are in their place. At this time, Sri.Ajith Prakash interjected to pray that since Ext. R8(e) appeal has been filed by his clients against the registration granted by the Registering Authority as per Ext.P7, it may be clarified that the Appellate Authority consider it untrammeled by the afore directions. I must say that no clarification as afore pleaded is necessary, since the Competent Appellate Authority is enjoined in law to consider Ext. R8(e) appeal on its merits. DEVAN RAMACHANDRAN JUDGE ANB
WP(C) NO. 13448 OF 2021 13 APPENDIX OF WP(C) 13448/2021 PETITIONER EXHIBITS Exhibit P1OF THE SALE DEED NO.4918/2001 OF SRO, PERUMBAVOOR IN FAVOUR OF THE 1ST PETITIONER DATED 29.11.2001. Exhibit P2OF THE TAX RECEIPT DATED 16.01.2020 ISSUED IN FAVOUR OF THE 1ST PETITIONER. Exhibit P3OF THE LEASE AGREEMENT DATED 3.7.2020 BETWEEN THE 1ST PETITIONER AND 2ND PETITIONER. Exhibit P4OF THE GST REGISTRATION CERTIFICATE DATED 21.11.2020. Exhibit P5OF THE CONSENT TO OPERATE UNIT ISSUED BY THE CONTROL BOARD DATED 08.08.2020 ISSUED IN FAVOUR OF THE 1ST PETITIONER. Exhibit P6OF THE CERTIFICATE OF ACKNOWLEDGEMENT FROM THE DEPARTMENT OF INDUSTRIES AND COMMERCE IN FAVOUR OF THE 1ST PETITIONER DATED 15.09.2020. Exhibit P7(a)OF THE REGISTRATION CARD ISSUED IN FAVOUR OF THE PETITIONERS HEAD LOAD WORKER MUHHAMED RIYAZ DATED 28.06.2021 ISSUED BY THE 4TH RESPONDENT. Exhibit P7(b)OF THE REGISTRATION CARD ISSUED IN FAVOUR OF THE PETITIONERS HEAD LOAD WORKER AMEEN MUHHAMED P. A. DATED 28.06.2021 ISSUED BY THE 4TH RESPONDENT. Exhibit P7(c)OF THE REGISTRATION CARD ISSUED IN FAVOUR OF THE PETITIONERS HEAD LOAD WORKER SYED SUHAIR K. A. DATED 28.06.2021 ISSUED BY THE 4TH RESPONDENT. Exhibit P7(d)OF THE REGISTRATION CARD ISSUED IN FAVOUR OF THE PETITIONERS HEAD LOAD
WP(C) NO. 13448 OF 2021 14 WORKER SHIBANANDA MALIK DATED 28.06.2021 ISSUED BY THE 4TH RESPONDENT. Exhibit P8OF THE LETTER JOINTLY ISSUED BY THE 7TH AND 8TH RESPONDENTS DEMANDING LOADING WORK ISSUED IN FAVOUR OF THE PETITIONER. Exhibit P9OF THE JUDGMENT DATED 24.03.2021 OF THIS HONOURABLE COURT. Exhibit P10OF THE EARLIER REQUEST SUBMITTED BY THE PETITIONERS JOINTLY BEFORE THE 1ST RESPONDENT DATED 26.02.2021 SEEKING POLICE PROTECTION. Exhibit P11(a)OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS DATED 26.02.2021. Exhibit P11(b)OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS DATED 26.02.2021. Exhibit P11(c)OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS DATED 26.02.2021. RESPONDENT EXHIBITS Exhibit R8(a) AOF THE IDENTITY CARD UNDER 6A OF POOL LEADER MR.ANAS C.H OF POOL NO.185 A DATED 01.03.2018. Exhibit R8(b) AOF THE 26A CARD APPLICATION SUBMITTED BY THE WORKERS REFERRED IN EXT. P7 (A) OBTAINED UNDER THE RTI ACT DATED 12.02.2021. Exhibit R 8(c) AOF THE PROCEEDINGS OF THE REGISTERING AUTHORITY UNDER RULE 26 A, DATED 28.06.2021 OBTAINED UNDER THE RTI ACT. Exhibit R8(d) AOF THE STATEMENT RECORDED BY
WP(C) NO. 13448 OF 2021 15 THE REGISTERING AUTHORITY ON 10.05.2021. Exhibit R8(e) AOF THE APPEAL MEMORANDUM DATED 30.08.2021 WITHOUT ITS ANNEXURES. PETITIONER EXHIBITS Exhibit P12OF THE REGISTER OF EMPLOYMENT AND WAGES FOR A PERIOD IN BETWEEN 21/6/2021 TO 18/9/2021 Exhibit P13OF THE WAGE SLIP FROM A PERIOD 21/6/2021 TO 18/9/2021
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.