Mohammed Sali Kahar vs. State Of Kerala - Kerala High Court, 12 February 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR.JUSTICE N.ANIL KUMAR TUE AY ,THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940 WP(C).No. 1912 of 2019 PETITIONER: MOHAMMED SALI KAHAR AGED 59 YEARS S/O.MUHAMED SALI, MANAGING PARTNER, M.S.TILES AND GRANITES, VI/15-N, NEDUNGOLAM, NEDUNGOLAM.P.O., PARAVUR, KOLLAM, KERALA, PIN- 691334. BY ADVS. SRI.V.JAYADHAR SRI.G.PRADEEP KUMAR SHRI.K.NIRMALAN SRI.V.SURESH KUMAR (HARIPAD) RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LABOUR AND SOCIAL WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695001. 2 STATE POLICE CHIEF, KERALA, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM, KERALA-695014. 3 CIRCLE INSPECTOR OF POLICE, PARAVUR POLICE STATION, KOLLAM, KERALA-691301. 4 LABOUR COMMISSIONER,LABOUR COMMISSIONARATE, THIRUVANANTHAPURAM, KERALA-695001. 5 ASSISTANT LABOUR OFFICER, ASSISTANT LABOUR OFFICE, PARAVUR, KOLLAM, KERALA-691301. 6 CHAIRMAN, KERALA HEADLOAD WORKERS WELFARE BOARD, CHATHANNOOR, KOLLAM, KERALA-691572. WP(C).No. 1912 of 2019 2 7 C.I.T..U PARAVUR BRANCH, REPRESENTED BY ITS SECRETARY, SASIDHARAN, S/O.KUNJURAMAN, SULOCHANA BHAVAN, PARAVUR.P.O., KOLLAM, KERALA, PIN-691301. 8 I.N.T.U.C. PARAVUR BRANCH, REPRESENED BY ITS SECRETARY, HASHIM, S/O.ABDUL RAHIM, ANDIYAZHIKAM, THEKKUMBHAGOM.P.O., KOLLAM, KERALA, PIN-691301. 9 B.M.S. PARAVUR BRANCH, REPRESENTED BY ITS SECRETARY, RAJESH, S/O.PARUKKUTTY, MANKULAM, KONGAL, PARAVUR.P.O., KOLLAM, KERALA, PIN-691301. 10 A.I.T.U.C., PARAVUR BRANCH, REPRESENTED BY ITS SECRETARY, K.K.SURENDRAN, S/O.KANNA, THUNDIL VEEDU, KURUMANDALL, PARAVUR.P.O, KOLLAM, KERALA, PIN- 691301. 11 MURUKAN,KANJIRAVILA VEEDU, KALAKKOD, KOLLAM, KERALA-691331. 12 SATHYAN,CHARUVIAL VEEDU, NEDUNGOLAM, KOLLAM, KERALA-691332. 13 PRADEEP, MULAKKAL PADINJATTATHIL, KOONAYIL, NEDUNGOLAM, KOLLAM, KERALA -691332. BY ADVS. SRI.G.S.REGHUNATH SRI.SIJU K., SC, KHWWB BY SR.GOVERNMENT PLEADER SRI.P.P.THAJUDEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 1912 of 2019 3 JUDGMENT P.R. Ramachandra Menon, J.

The forceful obstruction stated as caused to the running of the establishment of the petitioner involving only incidental works of loading and unloading of Tiles, Granites and such other Sanitary items and the laxity on the part of the police in taking timely action to set normalcy and to ensure the rule of law, is the subject matter of challenge in this writ petition.

The petitioner is running an establishment under the name and style as M.S. Tiles & Granites, doing the business of Trading of Tiles and Granites and such other Sanitary items as mentioned above, from 01.08.2016. It is a partnership firm and the petitioner is cited as the Managing Partner. The establishment is situated in the property owned by the petitioner and all the requisite licences in this regard have been procured from different authorities . Exts.P3 and P4

WP(C).No. 1912 of 2019 4 are the licences issued by the Local Authority. Ext.P5 is the certificate with regard to the registration under the Central Goods and Services Tax Act, 2017. The petitioner contends that he has got permanent workers to do the incidental loading and unloading works and in compliance with the statutory requirement, six of such workers have got registration in terms of Rule 26A of the Kerala Headload Workers Rules. Ext.P6(a) to (f) are the I.D. Cards issued by the competent authorities, i.e. the 5th respondent herein, wherein all the relevant particulars have been given, also showing the name of the establishment of the petitioner.

In the course of further proceedings, the private respondents herein, including the Unions intervened on 15.01.2019 and demanded work stating that the same has to be given exclusively to them, alleging that they alone have the right to do the loading and unloading activities in the area and further that the petitioner cannot get the works done through the workers stated as attached to the establishment of the

WP(C).No. 1912 of 2019 5 petitioner. Immediately, the matter was brought to the notice of the Assistant Labour Officer by filing Ext.P8 complaint. Similar complaint was filed before the Kerala Headload Workers' Welfare Board as evident from Ext.P9. On bringing the affairs to the notice of the ALO (who issued Ext.P6 series I.D.Cards), the petitioner was informed that nothing further remained to be dealt with by him, but for making a reference to the G.O.No.511/2018 dated 30.04.2018 issued by the Government prohibiting any interference from any part or any corner claiming employment or otherwise, demanding higher wages causing obstruction to any employer and that in the event of any untoward incident, it was for the petitioner to approach the police. It was accordingly, that Ext.P11 complaint was filed by the petitioner before the third respondent seeking for immediate interference and police protection. This did not evoke any positive response and hence the writ petition.

On completion of service of notice, the private respondents have entered appearance and a counter

WP(C).No. 1912 of 2019 6 affidavit has been filed by the 13th respondent, which was filed only in the personal capacity as 13th respondent. The rights and liberties projected by the petitioner in the writ petition have been sought to be rebutted stating that the vested right of the said respondent has been caused to be infringed by the petitioner. It is also stated that Ext.P6 I.D.Cards have been obtained/procured by the petitioner, by manipulating the records and that it was not correct or proper for the 5th respondent to have issued such cards, even without affording an opportunity of hearing to the respondents 11 to 13, who are already registered as headload workers in the area. There is also an insinuation to the effect that on the very next moment when the petitioner filed Ext.P8 complaint before the ALO, Ext.P10 has been issued that too, without hearing the respondents 7 to 13, virtually declaring the rights; and that the said procedure itself is wrong and is not liable to be sustained.

The petitioner has filed a reply affidavit seeking to sustain the contentions and rebutting the

WP(C).No. 1912 of 2019 7 contents of the counter affidavit.

Heard the learned counsel for the petitioner, the learned counsel for the private respondents, the learned Standing Counsel for the Board and the learned Sr. Government Pleader for other respondents.

There is no dispute to the fact that the petitioner is trying to run the establishment on the strength of the licence issued by the Local Authority and is also having registration under the Central Goods & Service Tax Act, 2017 as borne by Exts.P4 and P5. It is brought on record that the petitioner, by virtue of the nature of operation, decided to get the attached workers registered in terms of Rule 26A. It was accordingly, that necessary applications have been submitted which were considered and finalised by the competent authority leading to issuance of Ext.P6 series cards. There is no case that operation of such cards has been stayed by any appellate authority and in fact the same is still in operation.

The learned counsel for the petitioner submits that the G.O. referred to by the ALO in Ext.P10 has

WP(C).No. 1912 of 2019 8 been produced as Ext.P13; clause (7) of which reads as follows: It is stated that the petitioner is a law abiding citizen and is trying to do his business on the strength of all valid clearance/permits/licence, which cannot be forcefully obstructed by anybody claiming employment or otherwise. The callous inaction on the part of the police in trying to rise to the occasion so as to meet the law and order situation and to abate the threat to the rule of law is liable to be deprecated, which is sought for in this writ petition.

The learned counsel for the petitioner submits that the rights and liberties of the petitioner in this regard stands vested and confirmed as declared by many a judgment of this Court, including in Gangadharan C.P. and another vs. Abdul Nasir and others [2016(5)KHC 238] (paragraph 9),Amma Granites and Tiles vs. District

WP(C).No. 1912 of 2019 9 Labour Officer, Ernakulam and others [2016(4)KHC 185] (paragraph 16), TMV Natural Oils & Extracts (P) Ltd. vs. Sub Inspector of Police, Aluva [2016(5)KHC 724] (paragraphs 7 and 9). There is a further contention for the petitioner that the nature of operation that is being pursued by the petitioner is rather sophisticated, in so far as the tiles procured and marketed by the petitioner are susceptible to easy damage, particularly to its sides and corners, if not properly handled, for which sufficient skill/experience is necessary, which has been imparted to the workers attached to the petitioner's establishment. The said work cannot be assigned to anybody, who are unattached workers like respondents 11 to 13 and the case of engagement of workers for work assignment as above stands covered by the ruling rendered by this Court in Safa System & Solutions vs. Station House Officer, Palarivattom [2018 (3)KHC 311 ] (paragraph 10).

10.

Shri Siju K., the learned Standing Counsel for the Board however submits that the factum of issuance of Rule 26A cards to the petitioner stands conceded and

WP(C).No. 1912 of 2019 10 that the loading and unloading activities in connection with the Tiles, Granites and Sanitary wares cannot be equated to the situation dealt with by the Bench of this Court in 2018(3)KHC 311 (cited supra), where it was actually sophisticated items – i.e. mobile phones and as such, the said ruling does not come to the rescue of the petitioner.

11.

Shri G.S. Raghunath, the learned counsel for the private respondents submits that at no point of time had they raised any forceful obstruction with regard to the activities of the petitioner, but for demanding employment, for which they are having vested rights being registered workers in the area. The learned counsel also submits that the dictum laid down by the Larger Bench of this Court in Theresa Jose vs. Sub Inspector of Police (2015(3)KHC 487] is not applicable to the petitioner's establishment, in so far as the loading and unloading activities are not incidental or occasional, which was the position dealt with by the Larger Bench in the said case(Paragraph 23). So as to support the said contention, reference is

WP(C).No. 1912 of 2019 11 made to paragraph 2 of the writ petition, wherein the nature of operation in the petitioner's Unit is categorically stated, from which it is discernible that the operation therein is a continuing one and hence the loading and unloading work is not incidental or occasional. It is stated that there is no law and order situation and the 5th respondent/ALO was not justified in issuing the I.D.Cards without hearing the respondents herein; and therefore there is dereliction of duty as well, it being contrary to the statute. It is further pointed out that there is a specific provision in the statute for settlement of disputes. When the petitioner moved the ALO by filing Ext.P8, notice ought to have been issued to the respondents and conciliation proceedings should have been initiated. It was without doing any such exercise, that the ALO issued Ext.P10 on the very same day, i.e. on 16.01.2019 making a reference to Ext.P13 G.O. dated 30.04.2018 and relegating the petitioner to move the police for necessary relief. The learned counsel seeks to place reliance on the verdict passed by another Bench in

WP(C).No. 1912 of 2019 12 Shereef vs. Muhammed Shefeek and others[2017 (2)KHC 873] (paragraph 20) to contend that, eventhough the respondents are unattached workers, they are registered workers in the area and as such, they have got a right to challenge the matter.

12.

There cannot be any dispute to the fact that a person aggrieved can seek to challenge the proceedings, if there is a valid or justifiable right either on facts or in law. There is no case for the respondents that issuance of Ext.P6 I.D.Cards has ever been challenged by them by approaching the appellate authority. Similarly, if they are having any grievance with regard to engagement of the attached workers, the registration given or as to the right to get employment in preference or otherwise, it is still open for them to move the competent authority under the statute. If no timely action is taken, it is still open for them to approach this Court or such other appropriate Forum for redressal of the grievances. No material has been brought to the notice of this Court, if any filed by the said respondents seeking to initiate conciliation

WP(C).No. 1912 of 2019 13 proceedings, if at all there is a valid and sustainable dispute. The decision rendered in Shereef v. Muhammed Shefeek (2017(2)KHC 873) is also with regard to the right of the party concerned to raise a challenge. In so far as no such challenge is substantiated as raised, it is not open for the said respondents to challenge the course of action pursued by the ALO/competent authority, who has issued Ext.P6 I.D.cards.

13.

The learned Government Pleader submits that on receipt of the complaint from the petitioner, the police rushed to the spot and the persons, who were causing obstruction, were caused to be disbursed. It is pointed out that a further meeting was scheduled by the third respondent , which was attended by all concerned. But the private respondents herein were adamant that they would obstruct, if the work was entrusted to the attached workers.

14.

The learned counsel for the petitioner submits that there is absolutely no merit or basis for alleging that the cards have been procured by the petitioner pursuing any act of fabrication of manipulation. It is

WP(C).No. 1912 of 2019 14 also pointed out that the establishment was started only on 01.08.2016, Ext.P3 consent was issued on 01.08.2016 and Ext.P6 series I.D.Cards have been issued only on 19.10.2016 (as evident from the dated signature of the ALO in the said proceedings). This being the position, merely with reference to the register number given in the cards, it cannot be contended by the private respondents that the proceedings are manipulated or fabricated, submits the learned counsel. It is further contended that even otherwise, if there is any such case, it is open for the private respondents to move the competent authority against issuance of Ext.P6 series I.D.Cards. Having not chosen to do so, they cannot take law into their hands, claiming employment or otherwise and virtually stalling the operation in the petitioner's Unit, submits the learned counsel.

15.

After hearing both the sides, this Court is of the view that the petitioner has established a case for interference. The private respondents herein, if aggrieved in any manner, with regard to issuance of

WP(C).No. 1912 of 2019 15 identity cards or as to the alleged right to get employment in preference to the attached workers (which we find it difficult to agree by virtue of the rulings rendered by this Court at different points of time), it is open for them to move the competent authority by way of appeal or such other proceedings in accordance with law. But this cannot be a green card to cause any forceful obstruction, so far as the operation is being done by the petitioner on the strength of valid licence and subject to the conditions issued by the competent authority in this regard.

16.

In the above circumstance, we find that the petitioner is entitled to succeed. The submission made by the learned counsel for the private respondents that no forceful obstruction will be caused by them is recorded. But, for any reason, if there is any such instance of forceful obstruction and once the same is brought to the notice of the police, it shall be for the third respondent to intervene immediately taking appropriate remedial measures, extending adequate and effective protection to the petitioner and his workers

WP(C).No. 1912 of 2019 16 having identity cards, to sustain the rule of law. The writ petition stands allowed to the said extent. No cost. P.R. RAMACHANDRA MENON, JUDGE N. ANIL KUMAR, JUDGE lk

WP(C).No. 1912 of 2019 17 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1OF THE PARTNERSHIP DEED, DATED NIL. EXHIBIT P2OF THE POSSESSION CERTIFICATE, NO.37457536, DATED 17/01/2019. EXHIBIT P3OF THE INITIAL LICENCE NO.ZONE-1 110/16-17, DATED 01/08/2016, ISSUED BY PARAVUR MUNICIPALITY. EXHIBIT P4OF THE CURRENT LICENCE NO.319-2018/2019, DATED 17/01/2019, ISSUED BY PARAVUR MUNICIPALITY. EXHIBIT P5OF THE GST REGISTRATION NO GSTIN:32ABDFM0642C1ZO. EXHIBIT P-6A TO EXHIBIT 6FOF THE 6 NOS. LABOUR ID ISSUED BY ALO, PARAVUR, KOLLAM. EXHIBIT P7OF THE TAX INVOICE NO.2582/17, DATED 15/01/2019, WHICH THE PETITIONER'S WORKERS PARTIALLY LOADED THE CONSIGNMENT. EXHIBIT P8OF THE COMPLIANT DATED 16/01/2019, GIVEN TO LABOUR OFFICER, PARAVUR, KOLLAM. EXHIBIT P9OF THE COMPLIANT DATED 16/10/2019 GIVEN TO CHAIRMAN, KERALA HEAD LOAD WORKERS WELFARE BOARD, CHATHANNUR, KOLLAM, EXHIBIT P10 TRUE COY OF THE REPLY NO.26/2019, DATED 16/01/2019, GIVEN BY LABOUR OFFICER,PARAVUR, KOLLAM.

WP(C).No. 1912 of 2019 18 EXHIBIT P11OF THE COMPLAINT DT 17/01/2019, GIVEN TO CI OF POLICE, PARAVUR, KOLLAM. EXHIBIT P12OF THE ACKNOWLEDGEMENT RECEIPT NO.6451, DATED 17/01/2019, ISSUED BY CI OF POLICE PARAVUR, KOLLAM. EXHIBIT P13OF THE GO(ORDINARY) 511/2018/EMPLOYMENT, DATED 30/04/2018. EXHIBIT P-14A TO 14D TRUE COPIES OF THE INVOICES NO.2580/17 2581/17, 2583/17 AND 2584/17 OF PENDING CONSIGNMENT DATED 15/01/2019. // P.S. TO JUDGE.