Shankar Pandit vs. The State Of Kerala - Kerala High Court, 12 March 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THUR AY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941 WP(C).No.22266 OF 2019(G) PETITIONER/S: 1 SHANKAR PANDIT, AGED 44 YEARS, THOUZHUTHUNKAL STREET LAND, AROOR, ALAPUZHA, PIN - 688 534. 2 ANIL GUPTA, THOUZUTHUNKAL STREET LAND, AROOR, ALAPPUZHA, PIN - 688 534. 3 SHILPA ZAVIER, AGED 25 YEARS, W/O. JOBIN T. J., PROPRIETOR, THOZHUTHUNKAL STREET LAND, AROOR, ALAPPUZHA,PIN - 688 534. BY ADVS. SRI.P.SANJAY SMT.A.PARVATHI MENON SRI.BIJU MEENATTOOR SRI.PAUL VARGHESE (PALLATH) SRI.KIRAN NARAYANAN RESPONDENT/S: 1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY , DEPARTMENT OF LABOUR, THIRUVANANTHAPURAM - 695 001. 2 DISTRICT LABOUR OFFICER, THONDANKULANGARA, THATHAMPALLY, ALAPPUZHA, KERALA - 688 013. 3 CHAIRMAN, THE KERALA HEAD LOAD WORKERS' WELFARE BOARD, AROOR PALLI UNION, AROOR, ALAPPUZHA - 688 534, REPRESENTED BY ITS SECRETARY. 4 DISTRICT LABOUR OFFICER, KAANKATHU MUKKU, KOLLAM, KERALA - 691 013. WP(C).No.22266 OF 2019(G) 2 5 THE ASSISTANT LABOUR OFFICER, MINI CIVIL STATION, CHERTHALA NORTH, ALAPPUZHA - 683 534. R1, R2, R4 & R5 BY SRI.RON BASTIAN, GOVERNMENT PLEADER R3 BY SRI.S.KRISHNA MOORTHY, SC, KHWWB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.22266 OF 2019(G) 3 JUDGMENT Under challenge in this petition filed under Article 226 of the Constitution of India is the order passed by the 5th respondent rejecting the applications filed by the petitioners 1 & 2 seeking registration under Rule 26A of the Headload Workers Rules, 1981. The petitioners have also mounted a challenge against Exhibit P12 order by which the appeal filed by them was dismissed by the 4th respondent.

The 3rd petitioner is the proprietress of Thozhuthunkal Steel Land and is engaged in the hardware business. The said establishment is newly launched and is the sister concern of Thozhuthunkal Agencies run by her husband. The 3rd petitioner decided to appoint petitioners 1 and 2, who are migrant workers, as permanent headload workers of the establishment. The petitioners 1 and 2 submitted application seeking registration under Section 26A of the Rules with the 5th respondent. The application was rejected on the ground that the establishment being situated in the scheme covered area, it may result in lack of sufficient work opportunities for existing pool workers. The 5th respondent also found that the registers maintained by the petitioner No.3 was not proper and that the petitioners 1 and 2 also used to work in the sister concern, viz., Thozhuthunkal Agencies. Separate appeals

WP(C).No.22266 OF 2019(G) 4 were preferred by the petitioners before the 4th respondent. The appeal filed by the petitioners 1 and 2 were dismissed by Exhibit P 12 order finding that there is no reason to interfere with the order passed by the 5th respondent.

Sri P. Sanjay, the learned counsel appearing for the petitioners submitted that the petitioners 1 and 2 have a fundamental right to do headload work in the establishment run by the 3rd petitioner, who is their employer. It is further submitted that denial of registration under Rule 26A of the Headload Workers Rules on the ground that the grant of such registration would result in lack of opportunities to the registered unattached workers is unsustainable. According to the learned counsel, the registering authority has erroneously concluded that for grant of registration, the 3rd petitioner should have maintained registers under the Headload Workers Act and the Rules framed thereunder showing that the petitioners are in fact working in the said establishment as headload workers. This assumption is clearly against the law laid down by this Court in Rajeev V District Labour Officer and Others1, contends the learned counsel. Sri.Sanjay would vehemently urge that this Court had conclusively held that registration cannot be denied on the ground that the applicant is not already a headload worker. According to the learned counsel, all that is required for a prospective worker who applies for registration is a good physique and an 1 2010 (4) KLT 783

WP(C).No.22266 OF 2019(G) 5 employer who is prepared to engage him. He points that this view of the learned Single Judge was upheld by the Division bench in Gangadharan C.P. and Another v Abdul Nasir and Others2. It is further submitted that the petitioners herein had applied for registration as “attached workers” and registration could not have been denied on the ground that it would affect the employment opportunities of the existing unattached workers. He would rely on Gangadharan (supra) and it was argued that workers having registration in the area cannot be heard to contend that grant of registration to “attached workers” of establishment would affect their right of livelihood. The learned counsel would then refer to the order passed by the Appellate Authority and it was argued that none of these aspects were taken note of.

The learned Government Pleader on instructions submitted that the application was rejected on sustainable grounds and it does not warrant any interference. It is submitted that the establishment of the 3rd petitioner is situated in a scheme covered area and if registration is granted it would affect the employment prospects of the existing pool workers. Much emphasis was also placed on the discrepancies in the registers maintained by the establishment of the 3rd petitioner and it was argued that their application for registration was rightfully rejected.

I have given my considerable thoughts to the respective 2 2016 (5) KHC 238

WP(C).No.22266 OF 2019(G) 6 submissions of the learned counsel appearing for the parties and have perused the records.

The entire dispute revolves around the rejection of the application filed by the petitioners 1 and 2 seeking registration under Rule 26A of the Headload Workers Rules. The Head Load Workers Act and the Rules are made applicable for the whole of the State and the requirement of registration under Rule 26A is effective throughout the State whether it is an area to which the Scheme is made applicable or not. Therefore, all headload workers, whether permanently employed in an establishment or not are bound to get registration under Rule 26A if they intend to function as such.

Admittedly, the establishment commenced by the 3rd petitioner is a new one. The petitioners 1 and 2 wants to start work as headload workers for the first time. The 3rd petitioner had given evidence that she is prepared to engage the petitioners 1 and 2 as headload workers. With this backdrop in mind, it would be apposite to refer to the observations of Sri.Siri Jagan(J), as he then was, in Rajeev (supra). Paragraph 6 of the report is extracted below for easy reference . ……………...If for working as a headload worker in a scheme covered area, registration under Rule 26A is mandatory, it defies logic as to how for registration under Rule 26A, Respondents 1 and 2 can insist that applicants who apply for registration under Rule 26A should be already headload workers working under the employer as proved by registers maintained as per Rules. For example take the case of a young man who comes of age and decides to pursue headload work as an avocation and means of livelihood for himself and his family.

WP(C).No.22266 OF 2019(G) 7 He finds an employer, but the employer tells him that he cannot employ him as a headload worker unless he gets a registration under Rule 26A, which the employer is bound to insist upon in view of Clause 6 of the Scheme. He files an application under Rule 26A. Can he be denied registration on the ground that he is not already a headload worker working under the said employer? I do not have to think twice to give a big 'NO' as an answer because that is the only logical answer. If registration is denied to such an individual that would be violation of his fundamental right under Article 19(1)(g) of Constitution of India, which guarantees to every citizen of India the right to practice any profession, or to carry on any occupation, trade or business. No legislation can deny that fundamental right to a citizen. If there is a legislation denying such a right to any citizen that would be unconstitutional and liable to be struck down as such or read down to make it constitutional. Therefore, if Rule 26A pre- supposes employment as a headload worker under an employer, for being eligible for registration under Rule 26A, that Rule would be unconstitutional insofar as it would violate the fundamental right of a citizen to engage himself in and carry on the profession of a headload worker, since under Clause 6 of the Scheme without registration under Rule 26A, he cannot engage himself in headload work. Consequently, Rule 26A has to be construed and read down so as to make it constitutional. It is true that in Form No. IX, which is the form prescribed for submitting application for registration under Rule 26A, name and address of the employer under whom the headload worker is working and the date of commencement of work under the employer are to be given. But under Clause 6 of the scheme, no headload worker who is not a registered headload worker under the provisions of the Kerala Headload Workers Rules shall be allowed or required to work in any area to which the scheme applies, from the date of commencement of, the functional operation of the scheme in that area. If without registration nobody can work as a headload worker, I fail to understand how a person who wants to start work as a headload worker for the first time can be insisted on to prove that he was already working under the employer as a condition for entertaining an application for registration. Therefore I am of opinion that Rule 26A and the Form IX should be so construed and read down that for getting registration, what is required is a good physic and, an employer who is prepared to engage the applicant as a headload worker and it is not necessary that he should have already been working under the employer under whom he seeks registration as headload worker for becoming eligible for such registration.

In that view of the matter, there was no justification on the part of the registering Authority as well as the Appellate Authority in denying

WP(C).No.22266 OF 2019(G) 8 registration on the ground that the 3rd petitioner failed to maintain registers as contemplated under the Headload Workers Act. The said approach is clearly erroneous in the light of the principles laid down by this Court.

The next question is whether denial of registration to the petitioners on the ground that the employment prospects of the registered unattached workers would be affected can be sustained. This question has been settled by this Court in in C.P. Gangadharan (supra) wherein a Division Bench of this Court had occasion to observe as follows in paragraph No.17 of the report. “Yet another aspect to be noted is that the status of the persons, who are the existing registered unattached workers in the area, who get aggrieved if any order is passed by the registering authority granting registration to more number of workers in the area and thus enabling them to prefer an appeal in terms of Rule 26C of the Rules, was made with reference to the right to live, which was declared as inclusive over right to livelihood as made clear by the Apex Court in Olga Telli's case and DTC case (cited supra). Applying the very same logic and reasoning, this Court is of the view that a similar right is there for a person, who becomes eligible, to get registered and to eke out his livelihood in the area. On a given date, a person may not be eligible but on attaining the eligibility, particularly on attaining majority and on feeling the need to maintain his family, [which may be consisting of different persons/ dependents/patients/aged parents/ widows/ children and the like], at least by doing some loading or unloading operations, it definitely amounts to his right to live, which naturally includes the right to livelihood as well. This constitutional right to the person concerned cannot be denied to him merely for the reason that somebody else, who has already got berth may have to adjust a bit more with the available infrastructure. Nobody can contend that those who became fortuitous to have obtained registration earlier could alone continue as such, denying similar rights to the others. Under such circumstances, it is always for the statutory authorities to regulate the extent of work available among the eligible hands by appropriate means/measures, either by way of rotation or otherwise and it is not

WP(C).No.22266 OF 2019(G) 9 by promoting only one lot and pushing down the other lot for ever. As such, eventhough the already existing registered unattached workers could be said as persons aggrieved on granting registration to more persons in the area and hence are eligible to prefer an appeal in terms of Rule 26C, it is for the appellate authority to consider all these aspects to an appropriate extent, giving effect to the scheme of the statute, without compromising the fundamental principle of equality before law and such other relevant provisions. In the instant case, since the registration sought for by the writ petitioners was in respect of 'attached workers' of the establishment and since the appellants are admittedly the registered unattached workers in the area, they could never have objected to such registration under any circumstance.”

10.

In other words, even though the existing unattached workers may be reckoned as aggrieved persons to granting registration to the petitioners, their objection could not have been a valid consideration to deny registration. The petitioners are having a right, on them becoming eligible, to get registered and to eke out their livelihood by practicing an avocation of their choice. Their constitutional right cannot be denied merely for the reason that the earnings of the workers registered earlier might be adversely affected. In the case on hand, the application was filed in their capacity as attached workers and hence, under no circumstance, the same could have been rejected on the ground that grant of registration would affect the employment prospects of the unattached workers of the area. For the aforesaid reasons, I am inclined to interfere with the orders passed by the registering authority as well as the Appellate Authority. Exhibit P2 order issued by the 5th respondent and P12 order issued by the 4th

WP(C).No.22266 OF 2019(G) 10 respondent will stand quashed. The matter is remitted back to the 5th respondent who shall consider the same expeditiously, in the light of the above principles and pass appropriate orders, within a period of six weeks. RAJA VIJAYARAGHAVAN V JUDGE DSV/12.3.2020

WP(C).No.22266 OF 2019(G) 11 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE JUDGMENT DATED 26.11.2018 IN WPC 38227/2018 OF HON'BLE HIGH COURT OF KERALA. EXHIBIT P2OF THE ORDER OF THE 5TH RESPONDENT BEARING NO.H.L.27/2018 & 28/2018 DATED 29.12.2018. EXHIBIT P3OF THE WAGE RECORD AND MUSTER ROLL. EXHIBIT P4OF THE APPOINTMENT LETTER ISSUED TO PETITIONERS 1 AND 2. EXHIBIT P5OF THE WAGE DEPOSIT SLIP BY THE 3RD PETITIONER'S HUSBAND ESTABLISHMENT. EXHIBIT P6OF THE APPEAL JOINTLY FILED BY PETITIONERS 1 AND 2 DATED 12.4.2019. EXHIBIT P7OF THE FIR IN CRIME NO.0323/2019 DATED 19.3.2019. EXHIBIT P8OF THE JUDGMENT IN WPC 11759/2019. EXHIBIT P9OF THE REPRESENTATION DATED 3.6.2019 SENT BY PETITIONERS 1 AND 2 ALONG WITH THE ACKNOWLEDGMENT. EXHIBIT P10OF THE LETTER NO:G/2922/19 DATED 17.6.2019 BY THE 4TH RESPONDENT. EXHIBIT P11OF THE LETTER NO.G/2922/19 ISSUED BY THE 4TH RESPONDENT WITH THE REVISED HEARING DATED 3.7.2019. EXHIBIT P12OF THE ORDER NO.G.2922/2019 OF THE 4TH RESPONDENT DATED 15.7.2019 OF THE 4TH RESPONDENT. EXHIBIT P13OF THE FORM V- REGISTER OF EMPLOYMENT AND WAGES FOR THE WEEK COMMENCING ON 24.11.2019. WP(C).No.22266 OF 2019(G) 12 EXHIBIT P14OF THE FORM VI-WAGE RECEIPT FOR THE WEEK FROM 24.11.2019 BY THE 1ST PETITIONER. EXHIBIT P14(A)OF THE FORM VI -WAGE RECEIPT FOR THE WEEK TO 30.11.2019 BY THE 2ND PETITIONER. EXHIBIT P15OF THE GST REGISTRATION OF THOZHUTHUNKAL STEEL LAND BEARING NUMBER 32AAFPX1879F1ZH DATED 14.08.2018. EXHIBIT P16OF THE PANCHAYATH LICENCE OF THOZHUTHUNKAL AGENCIES DATED 24.05.2019. EXHIBIT P17OF THE GST REGISTRATION OF THOZHUTHUNKAL AGENCIES BEARING NUMBER 32AKOPJ0069J11Z4. EXHIBIT P18OF THE PANCHAYATH LICENCE THOZHUTHUNKAL AGENCIES DATED 24.05.2019. RESPONDENT'S/S EXHIBITS: NIL //// P.A.TO JUDGE

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