Chandran Ponnappan vs. The Commissioner - Kerala High Court, 03 March 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUE AY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941 WP(C).No.2603 OF 2020(A) PETITIONER/S: 1 CHANDRAN PONNAPPAN, AGED 48 YEARS, S/O.PONNAPPAN, C.J.BHAVAN, ARATHALAVILAKAM, ARAYOOR.P.O., THIRUVANANTHAPURAM-695122. 2 MANIKANDAN.J., M C BHAVAN, POYYAKULAM, MARIYAPURAM.P.O., CHENKAL, THIRUVANANTHAPURAM-695122. 3 THANKAYYAN, JUZHINJAVILA VEEDU, ERICHALLOOR, PLAMOOTTUKADA.P.O., THIRUVANANTHAPURAM-695128. 4 SHINE S.N., POTTAKULATHU PUTHEN VEEDU, MARIYAPURAM.P.O., CHENKAL, THIRUVANANTHAPURAM-695122. 5 VINEESH.T.S., MUNDAKKAVILA VEEDU, KANTHALLOOR, PLAMOOTTUKADA.P.O., THIRUVANANTHAPURAM-695128. BY ADVS. SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB RESPONDENT/S: 1 THE COMMISSIONER, LABOUR COMMISSIONERATE, GOVERNMENT OF KERALA, THOZHIL BHAVAN, VIKASBHAVAN.P.O., THIRUVANANTHAPURAM-695033. 2 ASSISTANT LABOUR OFFICER, MINI CIVIL STATION, NEYYATINKARA.P.O., THIRUVANANTHAPURAM-695121. SMT POOJA SURENDRAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.2603 OF 2020(A) 2 JUDGMENT Under challenge in this petition is Exhibit P8 order passed by the 2nd respondent rejecting Exhibits P3 to P6 applications submitted by the petitioners 2 to 5 seeking registration under Rule 26A of the Kerala Head Load Workers Rules, 1981 in the establishment run by the 1st petitioner.

Short facts necessary to be stated for considering the issue raised in this Writ Petition is that the 1st petitioner decided to commence a business in hardware at Karode and obtained Exhibit P1 D & O license from the panchayath and Exhibit P2 GST registration. He decided to employ petitioners 2 to 5 as his attached headload workers and submitted Exhibit P 3 to P6 applications seeking registration. Those applications were considered by the 2nd respondent and the same was rejected by Exhibit P8 order on the ground that the 1st petitioner has not yet started his business and the petitioners 2 to 5 cannot therefore be said to be headload workers requiring registration.

Sri.Liju V.Stephen, the learned counsel appearing for the petitioners submitted that though the petitioner has a remedy in approaching the appellate authority, the order passed by the 2nd respondent being clearly against the law laid down by this Court in Rajeev V. v. District Labour

WP(C).No.2603 OF 2020(A) 3 Officer, Kakkanad and Others1 as approved in Gangadharan v. Abdul Nasir2, this Court will be justified in interfering and in directing reconsideration of the matter. He would point out that it is not a requirement under the provisions of the Rules or the Head Load Workers (Regulation of Employment and Welfare) Scheme, 1983 that the workers who seek registration should be registered as previous employees in the establishment.

Heard the learned Government Pleader, who referred to Exhibit- P8 and it is submitted that the Assistant Labour Officer had taken note of the fact that the establishment has not even commenced its business and hence the order impugned does not warrant any interference. It is also submitted that no records are maintained by the establishment and though repeated opportunities were granted, the workers did not even appear before the 2nd respondent.

I have considered the submissions advanced. In Rajeev (Supra), this Court in paragraph 6 and 11 has held as follows:

“6. ………...Therefore, if R.26A pre - supposes employment as a headload worker under an employer, for being eligible for registration under R.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 1 [2010 (4) KHC 757] 2 [2016 (4) KLT, 592]

WP(C).No.2603 OF 2020(A) 4 clause 6 of the Scheme without registration under R.26A, he cannot engage himself in headload work. Consequently, R.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 R.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 R.26A and the Form IX should be so construed and read down that for getting registration, what is required is a good physique 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. (emphasis supplied) xxx xxxx

11.

The result of the above discussion is that for a prospective headload worker to get registration under Rule 26A of the Kerala Headload Workers' Rules, all what is required is physical ability to do headload work. As for

WP(C).No.2603 OF 2020(A) 5 registration as an attached worker an added condition is readiness of an employer to employ him as a headload worker. The requirement that a person should have first worked as a headload worker under an employer in order to get registration under Rule 26A directly contradicts clause 6 of the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983. Therefore respondents 1 and 2 could not have validly rejected the applications submitted by respondents 3 and 4 merely on the ground that the petitioner had not produced records to show that they had worked under the petitioner earlier.

Therefore the respondents 3 and 4 are entitled to registration under Rule 26A for doing headload work in the petitioner's establishment, insofar as they are able bodied persons, who can work as headload workers and the petitioner is ready to employ them as headload workers. ……………...”

The right of an employer to engage his own permanent workers to undertake the headload work of his establishment has been recognized by this court in V - Star Creation (P) Ltd. v. District Labour Officer3. This 3 [2010 (4) KLT 783] 4 [2010 (4) KLT 783]

WP(C).No.2603 OF 2020(A) 6 and others5 , it has been held that even in notified areas, the right of an employer to employ his own headload workers cannot be discarded. Finally, in Gangadharan (supra), it was held that the constitutional right of a person to live and eke out his livelihood cannot be curtailed merely because, some one else who managed to obtain registration earlier to him. In the case on hand, registration was refused on the sole ground that there are no records showing that the 1st petitioner has already commenced the business and the petitioners 2 to 5 are working in the said establishment as headload workers. The said conclusion cannot be sustained in view of the precedents cited above.

For the aforesaid reasons, Exhibit-P8 order cannot be sustained. The same is set aside. I direct the 2nd respondent to reconsider the applications in the light of Rajeev (supra) and pass appropriate orders, strictly in terms of the provisions of Rule 26A of the Rules, expeditiously, at any rate, within a period of 30 days from today. With the above said direction, this writ petition is disposed of. RAJA VIJAYARAGHAVAN V JUDGE DSV/3.3.2020 5 [2015 (1) KLT 750]

WP(C).No.2603 OF 2020(A) 7 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 AOF THE D & O LICENSE RECEIVED FROM THE KARODE PANCHAYAT TO THE 1ST PETITIONER DATED 25.5.2019. EXHIBIT P2 AOF THE REGISTRATION CERTIFICATE UNDER GST DATED 18.4.2018. EXHIBIT P3 AOF THE APPLICATION FOR REGISTRATION SUBMITTED BY 2ND PETITIONER TO 2ND RESPONDENT ON 22.10.2019. EXHIBIT P4 AOF THE APPLICATION FOR REGISTRATION SUBMITTED BY 3RD PETITIONER TO 2ND RESPONDENT ON 22.10.2019. EXHIBIT P5 AOF THE APPLICATION FOR REGISTRATION SUBMITTED BY 4TH PETITIONER TO 2ND RESPONDENT ON 22.10.2019. EXHIBIT P6 AOF THE APPLICATION FOR REGISTRATION SUBMITTED BY 5TH PETITIONER TO 2ND RESPONDENT ON 22.10.2019. EXHIBIT P7 AOF THE JUDGMENT DATED 15.11.2019 BY THE HON'BLE HIGH COURT IN WPC.NO.30876/2019. EXHIBIT P8 AOF THE ORDER DATED 16.1.2020 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S/S EXHIBITS: NIL //// P.A.TO JUDGE

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