Kerala High Court
Sail Stockyard Workers Union (Citu) vs Hadiyya Logistics Priavate Limited on 31 August, 2022
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
WA NO. 1654 OF 2021
AGAINST THE JUDGMENT DATED 11.12.2020 IN WP(C)NO.20667/2020
OF HIGH COURT OF KERALA
APPELLANT/3RD PARTY:
SAIL STOCKYARD WORKERS UNION (CITU),
T.K. RAMAKRISHNAN MEMORIAL BUILDING, NADAMA,
THRIPUNITHURA-682301,
REPRESENTED BY ITS SECRETARY K.K. MOHANAN.
BY ADVS.
LEGITH T.KOTTAKKAL
P.R.BANERJI
RESPONDENTS/WRIT PETITIONER & RESPONDENTS IN WRIT PETITION:
1 M/S.HADIYYA LOGISTICS PRIAVATE LIMITED,
33/602, HADIYYA MANSION, ARKKAKADAVU, VENNALA P.O.,
PIN-682028, KANAYANNUR TALUK, ERNAKULAM DISTRICT,
REPRESENTED BY ITS DIRECTOR, SARJUN SUJAUDEEN.
2 JAYAN C.K.,
SMP COLONY, EROOR SOUTH P.O., THRIPUNITHURA,
ERNAKULAM DISTRICT-683306.
3 SAJEEV D MUDRAKODE,
THRIPUNITHURA, ERNAKULAM DISTRICT-682301.
4 THE SUB INSPECTOR OF POLICE,
HILL PALACE POLICE STATION, THRIPUNITHURA, ERNAKULAM
DISTRICT-682301.
5 KERALA STATE HEAD LOAD WORKERS,
ERNAKULAM DISTRICT COMMITTEE, ERNAKULAM-682018,
REPRESENTED BY ITS CHAIRMAN.
6 ASSISTANT COMMISSIONER OF POLICE,
THRIKKAKARA, KOCHI-682021.
W.A No.1654/2021
&
W.A No.899/2022
7 COMMISSIONER OF POLICE,
KOCHI CITY, KOCHI 682011.
8
THE DISTRICT LABOUR OFFICER,
ERNAKULAM.
*ADDL.R9 THE ASSISTANT LABOUR OFFICER (CIRCLE 1), KAKKANAD,
ERNAKULAM (ADDITIONAL R9 IS SUO MOTU IMPLEADED AS PER
THE ORDER DATED 31.08.2022 IN W.A NO.1654/2021)
BY ADVS.
P.M.ZIRAJ
PHILIP T VARGHESE(B/O)
SRI.S.KRISHNA MOORTHY, SC, KHWWB
IRFAN ZIRAJ
PHILIP T.VARGHESE
THOMAS T.VARGHESE
ACHU SUBHA ABRAHAM
V.T.LITHA
K.R.MONISHA
SRI. T.K.VIPINDAS-SR.GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31.08.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A No.1654/2021
&
W.A No.899/2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
WA NO. 899 OF 2022
AGAINST THE JUDGMENT DATED 11.12.2020 IN WP(C)NO.20667/2020
OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 & 2:
1 JAYAN C.K.,
AGED 52 YEARS
SMP COLONY,EROOR SOUTH P.O.,THRIPUNITHURA,
ERNAKULAM-683 306.
2 SAJEEV D., AGED 50 YEARS,
MUDRAKODE, CHETHARI, THRIPUNITHURA, ERNAKULAM-682 301.
BY ADVS.
PHILIP T.VARGHESE
THOMAS T.VARGHESE
ACHU SUBHA ABRAHAM
V.T.LITHA
K.R.MONISHA
SHRUTHI SARA JACOB
RESPONDENTS/PETITIONER & RESPONDENTS 3 TO 7:
1 M/S.HADIYYA LOGISTICS PRIVATE LIMITED,
33/602,HADDIYA MANSION ARKKAKADAVU,VENNALA P.O.,682
028,KANAYANNUR TALUK,ERNAKULAM DISTRICT,REPRESENTED BY
ITS DIRECTOR, SARJUN SAJUDEEN,S/O.SAJUDEEN,
AGED 31 YEARS.
2 THE SUB INSPECTOR OF POLICE,
HILL PALACE POLICE STATION,THRIPUNITHURA,
ERNAKULAM-682 301.
3 THE KERALA STATE HEAD LOAD WORKERS,
W.A No.1654/2021
&
W.A No.899/2022
ERNAKULAM DISTRICT COMMITTEE,ERNAKULAM-682 018.
REPRESENTED BY ITS CHAIRMAN.
4 THE ASSISTANT COMMISSIONER OF POLICE,
THRIKKAKARA,KOCHI-682 021.
5 THE COMMISSIONER OF POLICE,
KOCHI CITY,KOCHI-682 011.
6
THE DISTRICT LABOUR OFFICER,
ERNAKULAM-682 030.
*ADDL.R7 THE ASSISTANT LABOUR OFFICER (CIRCLE 1), KAKKANAD,
ERNAKULAM (ADDITIONAL R7 IS SUO MOTU IMPLEADED AS PER
THE ORDER DATED 31.08.2022 IN W.A NO.899/2022)
BY ADV SRI.P.M.ZIRAJ (B/O)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31.08.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.
=================================
W.A No.1654 of 2021
[arising out of the impugned judgment
dated 11.12.2020 in W.P(C) No.20667/2020]
&
W.A No.899 of 2022
[arising out of the impugned judgment
dated 11.12.2020 in W.P(C) No.20667/2020]
=================================
Dated this the 31st day of August, 2022
JUDGMENT
Alexander Thomas, J.
As both these appeals arise out of the same impugned judgment, rendered in the instant Writ Petition (Civil), W.P(C) No.20667/2020, these cases are disposed of on the basis of this common judgment.
2. The appellants in W.A No.899/2022 are respondents 1 & 2 in the W.P(C) and R1 in the W.A is the writ petitioner and official respondents 2 to 6 in the W.A are official respondents 3 to 7 in the W.P(C), whereas W.A No.1654/2021 has been filed by a third party to the writ proceedings, who has filed the said appeal after securing third party leave. The said third party appellant in W.A No.1654/2021 claims to be a Workers' Union, affiliated to the Centre of Indian Trade Unions (CITU), which is the cause of the headload workers concerned, like the appellants in W.A No.899/2022.
W.A No.1654/2021
& W.A No.899/2022 2
3. Heard Sri.Philip T.Varghese, learned counsel appearing for the appellants in W.A No.899/2022, Sri.Legith T.Kottakkal, learned counsel appearing for the appellant in W.A No.1654/2021, Sri.P.M.Ziraj, learned counsel appearing for the contesting respondents in these appeals (writ petitioner-Establishment), Sri.N.Krishnamoorthy, learned Standing Counsel for the respondent- Kerala Headload Workers' Welfare Board, appearing for the said party and Sri.T.K.Vipindas, learned Senior Government Pleader appearing for the official respondents in these appeals.
4. The prayers in the instant Writ Petition (Civil) are as follows:
"A. Issue a writ of mandamus or other appropriate writ, order or direction directing the third respondent to afford proper and adequate police protection to the life of directors of petitioner, its employees, vehicles properties and equipment from the threat of respondents one and two and their henchmen for handling the materials in the yard of SAIL at Irmbanam.
B. Direct the third respondent to take proper and adequate preventive action against respondents one and two and their henchmen from causing any untoward incident against the petitioner.
AND C. Such other writ, direction or order, which deems fit and proper in the interest of justice and the circumstances of the case."W.A No.1654/2021
& W.A No.899/2022 3
5. The case of the writ petitioner was that he has been assigned with the consignment handling works, as per a contract entered into between the petitioner concerned and the Steel Authority of India Ltd. (SAIL), in respect of the works to be handled in a warehouse and stockyard of the SAIL at Irumbanam, Ernakulam. The broad case projected by the petitioner concerned is that the work of unloading and loading of the steel materials in the said warehouse cum stockyard of the SAIL is mechanised and there is no scope for manual loading and unloading, etc. The petitioner would state that respondents 1 & 2 in the W.P(C), who claimed to be headload workers, have demanded that they should be engaged as headload workers for the abovesaid works in question, which the petitioner could not concede and that they have obstructed the works of the petitioner concerned and at their instance, quite a few persons have trespassed into the premises of the petitioner, which has created serious problems in managing the work of the petitioner. Further that, he has demanded for police protection, which has not been acted upon by the police authorities concerned. It is in the light of these aspects that the petitioner has filed the instant Writ Petition (Civil), with the aforesaid prayers. W.A No.1654/2021
& W.A No.899/2022 4
6. The learned Single Judge, after hearing both sides, has rendered the impugned judgment on 11.12.2020, disposing of the instant W.P(C) No.20667/2020, with the finding that the work in the warehouse in question can be done only using heavy machinery and cranes and that, in the light of the settled legal position, no demand for loading and unloading work can be raised when loading work requires special skill and is carried out with the help of machines and such machines are operated by skilled workers and any assistance, required for the purpose of loading, like slinging or strapping the heavy sheets and coils, has also to be done by workers, who are trained for that purpose. However, if there is any manual workload, the petitioner will have to necessarily engage the service of the registered pool headload workers. It was further found therein that, the contesting respondents therein (appellants herein) or their men will have no right to claim that they should be engaged, to the exclusion of machines or skilled workers, who operate the said equipment. In that view of the matter, the learned Single Judge has disposed of the W.P(C) by ordering that, in the event of respondents 1 & 2 in the W.P(C) or their men causing any obstruction to the handling of consignment by the petitioner concerned in the SAIL godown with the aid of machines and skilled workers, the police shall W.A No.1654/2021 & W.A No.899/2022 5 grant protection, to enable the petitioner concerned to carry on the work. But that, if there is any manual headload work, the petitioner shall engage registered pool workers, etc. It is the abovesaid verdict of the learned Single Judge that is under challenge in the present intra court appeals, filed under Sec.5(i) of the Kerala High Court Act.
7. We have heard both sides in extenso on more than three occasions. We have anxiously considered the rival submissions as well as the pleadings and materials on record.
8. A brief reference to the factual aspects in this case would be pertinent :
(a) As per the terms and conditions of the
contract/agreement, entered into between the
petitioner concerned and the Steel Authority of India Ltd., the petitioner concerned, as the consignment handling agent, is required to carry out loading and unloading of Thermo Mechanically Treated (TMT) beams, channels, coils, heavy metal sheets, using cranes as well as machines, by employing skilled workers. The essence of the case of the petitioner concerned is that the work is fully mechanised and, W.A No.1654/2021 & W.A No.899/2022 6 going by the sensitive nature of the work involved, there is no question of engaging any unskilled workers and the petitioner has been permitted by the SAIL to engage skilled workers. Hence, the works are carried out only through skilled workers and, having regard to the delicate nature of the work, there is no scope for engaging unskilled headload workers, like the appellants herein, etc. and that obstruction caused by them is illegal and that therefore, the petitioner has sought for police protection, as the police is not carrying out their duties.
(b) Per contra, the case of the appellants herein/respondents 1 & 2 in the W.P(C), as set up in their pleadings is that they have been working in the very same SAIL stockyard for more than 15 years under various contractors, who have been awarded the said work by the SAIL, since the year 2006 and that many of the works involved are purely engaged in manual loading and unloading activities and therefore, the appellants have been consistently engaged for W.A No.1654/2021 & W.A No.899/2022 7 doing such loading and unloading works by the previous contractors. Further that, the previous contractor for the year 2006, by name M/s F.M.Transports, who is the proprietor/managing partner, was none other than the father of the present writ petitioner. Further that, the subsequent contractors also engaged the headload workers, like respondents 1 & 2 in the W.P(C). That, these aspects are also borne out from the settlement arrived at between the then contractor and the headload workers, as it is discernible from Ext.R1(c) judgment dated 09.06.2006 rendered by the Division Bench of this Court in W.P(C) No.10265/2006, filed by the then previous consignment agency, viz. M/s F.M.Transport, as well as Ext.R1(b), which is the list of 21 registered workers mentioned therein, out of which 12 headload workers are presently available for doing the said work, etc. They would also state that they have secured registration as headload workers of M/s F.M.Transport with the Assistant Labour Officer, W.A No.1654/2021 & W.A No.899/2022 8 Ernakulam, in terms of Rule 26A of the Headload Worker's Rules. They would strongly deny that the loading and unloading and shifting of materials in the SAIL stockyard, now run by the writ petitioner, is done by using mechanized devices and that only pick and carry type cranes are used in the SAIL stockyard and that those devices require the assistance and employment of headload workers, like the present appellants.
(c) They would strongly deny that any untoward incidents have occurred on 25.09.2020, as alleged in the W.P(C) or on any other day. Further that, it is only the present writ petitioner, after taking over as the contractor of SAIL, who has denied work to these headload workers and that being aggrieved thereby, they have approached the District Labour Officer, who is the statutory authority under the Kerala Headload Workers Act, 1978. These averments of respondents 1 & 2 in the W.P(C) have been rebutted in the reply affidavit, filed by the writ petitioner in the W.P(C), by W.A No.1654/2021 & W.A No.899/2022 9 stating that the said parties are not workers who are registered headload workers and nor have they been employed by the SAIL or their contractors in any point of time and that they do not have any valid identity cards under Rule 26A of the Kerala Headload Workers Rules and they are not attached to any pools in the area, in terms of clause 6(a) of the scheme framed under the abovesaid Act, etc. Further that, Ext.R1(e) identity cards would only reveal that Exts.R1 & R2 in the W.P(C) and others are workers of M/s. Southern Transport Company and nothing more, etc.
9. Pursuant to the directions issued by the learned Single Judge in the W.P(C), the respondent-District Labour Officer, Ernakulam has filed a report dated 06.11.2020, stating various aspects on the points on which this Court wanted clarifications in the W.P(C). The contents of the said report dated 06.11.2020, submitted by the respondent-District Labour Officer, Ernakulam are as follows :
"a) Nature of work which is being carried out by the petitioner in the SAIL Stockyard?
The operations currently being carried out at the SAIL stockyard at Irumbanam is loading and unloading operations of TMT beams, channels, Coils, Heavy metal sheets etc, using cranes and machines.
W.A No.1654/2021& W.A No.899/2022 10
b) Whether the entire handling work can be carried out using machines and the nature of equipment used by the petitioner?
Loading and unloading operations are done using mechanized devices like crane, forklift, etc. Attaching sling to the machine and cranes for such loading unloading operations are done using manual labour. It has also been noticed that a former contractor, M/s F. M. Transports employed manual labour for lifting metal plates using bars, stacking, attaching slings, etc, during their operations.
c) Whether the services of headload workers are required for the purpose of handling? Whether the work claimed by the respondents 1 and 2 are strapping the heavy steel girders to the crane and nothing more?
Though loading and unloading operations are done using mechanized devices like crane, forklift, etc, attaching sling to the machine and cranes for such loading unloading operations are done using manual labour. The same are being done by headload workers as a part of loading and unloading works in common practice.
d) Whether the respondents 1 and 2 or the other workers who claim work are holding cards issued under Rule 26A of the Headload Workers Rules? Respondent l and 2 and few other workers have been granted registration under Rule 26A of the Headload Workers Rules for the purpose of doing headload work under the employer M/s F. M. Transports, Vytilla on 30.03.2006. It is noted that the aforesaid company previously had a contract with Steel Authority of India Ltd, for loading and unloading operations at SAIL stockyard, Irumbanam.
e) Whether the contract entered into between SAIL and the petitioners require the contractor to employ manual labour for carrying out the handling work?
The contract between SAIL and the petitioners does not specify the need for loading and unloading operations using manual labour.
f) Such other details that are brought to the notice of the DLO.
Though loading and unloading operations are done using mechanized devices like crane, forklift, etc attaching sling to the machine and cranes for such loading unloading operations are done using manual labour. Lifting metal plates using bars for the purpose of strapping, stacking, attaching slings, etc, needs manual labour. The same are being done by headload workers as a part of W.A No.1654/2021 & W.A No.899/2022 11 loading and unloading works in common practice."
10. The abovesaid report, filed by the respondent-District Labour Officer would broadly disclose that the works in the consignment handling agency, run by the petitioner concerned, mainly involves loading and unloading of TMT beams, channels, coils, heavy metal sheets, etc., using cranes and machines. On this basis, the learned Single Judge has concluded that the work is carried out by skilled workers, trained for the said particular purpose. Sec.2(m) of the Kerala Headload Workers Act, 1978 defines 'Headload Worker' as follows :
"Sec.2(m) "headload worker" means a person employed or engaged directly or through a contractor in or for an establishment, whether for wages or not, for loading or unloading or carrying on head or person or in a trolly any article or articles in or from or to a vehicle or any place in such establishment or stacking articles, excluding delicate or sophisticated articles, in a vehicle or unloading by sliding using manual labour from a mechanically propelled vehicle or a person who does in connection with the work in ports, the works likes filling of fertilizers in sacks, weighing and stitching of sacks, bundling, breaking seals of containers, stacking and includes any person not employed by any employer or contractor but engaged in the loading or unloading or carrying on head or person or in a trolly any article or articles for wages in or from or to a vehicle, or any place in such establishment or stacking articles excluding delicate or sophisticated articles in a vehicle or unloading by sliding using manual labour from a mechanically propelled vehicle but does not include a person engaged by an individual for domestic purposes.
Explanation I: For the purpose of this clause, "a person engaged by an individual for domestic purposes" means any W.A No.1654/2021 & W.A No.899/2022 12 person engaged by an individual for,--
(i) shifting including transportation of furniture, personal effects and other household articles for domestic use; or
(ii) working in connection with the shifting of articles of a dwelling house of a person including work in connection with religious or social or public functions; or
(iii) cutting, removing, shifting and transportation of trees and wood for personal use; or
(iv) constructing or repairing and maintenance of house including the shifting and transportation of construction materials, equipments or machinery for personal use and not for the purpose of trade; or
(v) dismantling, demolishing and shifting of old building materials or equipments including their transportation which is not for industrial or commercial purpose; or
(vi) shifting and transportation of animals for personal use;
or
(vii) shifting and transportation of materials including agricultural implements, agricultural machinery, raw materials, agricultural produces, other materials related to agricultural operations in such person's land; or
(viii) doing such other work or activity or process which the Government may, by notification in the Gazette, specify to be a domestic purpose;
Explanation II-- For the purpose of this clause, "delicate or sophisticated articles" mean articles which require to be handled by trained or skilled persons;"
11. Sec.9A of the Act provides as follows :
"Sec.9A. Engaging the services of headload workers.- (1) Subject to the provisions of this Act, an employer shall engage a headload worker registered under the Act in connection with the work of his establishment;
Provided that in the case of works which require assistance of skilled persons and which are to be done with W.A No.1654/2021 & W.A No.899/2022 13 due diligence or require the aid of machinery, such works may be done by engaging the persons having such skill or by the machinery, as the case may be.
(2) Every Headload worker shall be entitled to wages as prescribed by the Government under the provisions of this Act only if their services have been engaged by the employer or the owner of an establishment."
12. Sec.2(m) of the Act would broadly define 'Headload Worker' to mean a person who has been engaged directly or through a contractor in or for an establishment, whether for wages or not, for the purpose of loading or unloading or carrying on head or person or in a trolley any article or articles in or from or to a vehicle or any place in such establishment. The said definition would also encompass its ambit, a person who has been employed for stacking articles, excluding delicate or sophisticated articles, in a vehicle or unloading by sliding, using manual labour from a mechanically propelled vehicle. Sec.9A(1) of the Act, introduced by an amendment, as per State Act 13 of 2018 and the Proviso thereto, would stipulate that, in the case of works which require assistance of skilled persons and which are to be done with due diligence require the aid of machineries, such works could be done by engaging persons having such skill or by the machinery. Hence, going by the cumulative impact of the definition of 'Headload Workers', as per Sec.2(m) read with Sec.9A of the Act, would lead to the situation that, W.A No.1654/2021 & W.A No.899/2022 14 where the work involved is not manual based loading and unloading activities, but work that is to be done in a mechanised manner, by using machines, etc. and where the works require the assistance of skilled persons, which are to be done with due diligence or require the aid of machinery, such works would be allotted by the establishment/management to skilled workers, having such skill, for the said purposes or by the machinery. In such a scenario, persons, who claim to be headload workers, for the purpose of carrying out manual based loading and unloading activities, cannot as a matter of right demand that the work should necessarily be allotted to them to the exclusion of such skilled workers or machines.
13. It has been held by a Division Bench of this Court in decisions as in Timber Merchant Association, Pala & Ors. v. Superintendent of Police, Kottayam & Ors. [2016 (1) KHC 841 (DB)], in para.9 thereof, that when loading and unloading activities are carried out by mechanical devices, then, persons who claim to be headload workers, have no right to demand extra charges or 'Nokkukooli' in that regard and that such person, who claim to be headload workers, have no right to prevent the management from carrying out the business by using mechanical devices, etc. W.A No.1654/2021 & W.A No.899/2022 15
14. A perusal of the aforementioned report of the respondent- District Labour Officer would indicate that clause (a) thereof would clearly indicate that the loading and unloading operations of TMT beams, channels, coils, heavy metal sheets, etc., are being done using cranes and machines. Therefore, the said work is a mechanised process of work. This aspect is again reiterated in clause (b) of the said report, wherein it is stated that loading and unloading operations are done using mechanised devices, like crane, forklift, etc.
15. However, it is stated in clause (b) of the said report that attaching sling to the machines and cranes, for such loading and unloading operations, are done using manual labour and that the former contractor, M/s F.M.Transport, employed manual labour for lifting metal plates, using bars, stacking, attaching slings, etc., during their operations. However, it is again repeated that attaching sling to the machine and cranes for such loading and unloading operation are done using manual labour and the same are being done by headload workers, as a part of loading and unloading works in common practice.
16. Clause (d) of the report deals with the registration of respondents 1 & 2 in the W.P(C) as well as few other workers as headload workers, in terms of Rule 26A of the aforesaid Rules and that W.A No.1654/2021 & W.A No.899/2022 16 those workers were engaged by the previous contractor M/s F.M Transports, Vytilla on 30.03.2006.
17. Clause (e) of the said report would explicate that the contract between the SAIL and the writ petitioners concerned does not specify the need for loading and unloading operations using manual labour.
18. Clause (f) of the said report would again indicate that loading and unloading operations are done using mechanized devices like crane, forklift, etc. However, it is again reiterated therein that attaching sling to the machine and cranes for such loading and unloading operations are done using manual labour. Further that, lifting metal plates using bars, for the purpose of strapping, stacking, attaching slings, etc., needs manual labour and that such manual labour is being done by headload workers, as part of the loading and unloading works in common practice.
19. A reading of the said report would indicate that, predominantly, the nature of the work of loading and unloading activities, carried out in the SAIL godown, through the writ petitioner concerned, is essentially using mechanized operations, which would require skilled workers.
W.A No.1654/2021
& W.A No.899/2022 17
20. However, some aspects in Clause (b) (c) & (f) of the abovesaid report of the DLO would indicate that, attaching slings to machines and cranes for such loading and unloading operations are done using manual labour. It is also stated, in Clause B thereof, that the former contractor, M/s.F.M.Transports had employed manual labour for lifting metal plates, using bars, stacking, attaching slings, etc, during their operations. However, in relation to similar facts stated in Clauses
(c) and (f) of the abovesaid report, what is stated by the DLO is essentially that such works have been done by Headload workers, as part of loading and unloading works in common practice. It is not stated, with precision and cogency, that those works mentioned therein were actually being done by headload workers as part-time unloading works in the present establishment, run by the present writ petitioner. On the other hand, what is stated is that the abovesaid factual comment is regarding a common practice in such similar establishments. That does not necessarily imply that such works have infact been done in the present establishment, run by the present writ petitioner etc. Of course, the latter part of Clause (b) of the report would indicate that the former contractor, M/s.F.M.Transports had employed manual labour for lifting metal plates, using bars, stacking, attaching slings, etc, during their W.A No.1654/2021 & W.A No.899/2022 18 operations. Both sides have made rival submissions on the scope of availability or otherwise of manual works in the petitioner establishment, as made out in Clauses (b), (c) & (f) of the abovesaid report of the DLO. But the predominant factual aspect that has emerged from the abovesaid report of the DLO is that, the major works in the petitioner establishment are loading and unloading operations, which are essentially using mechanized operations, which may not involve much manual labour. Where the work in question is exclusively or predominantly done using mechanized devices or would predominantly require skilled workers, then such works cannot be demanded as a right by headload workers, who can do manual loading and unloading works and it is a prerogative of the management to allot such works to skilled workers of their choice. That is the impact flowing out from Section 2(m) and Section 9(a) of the Act. It is taking note of these aspects that the learned Single Judge has held that the headload workers cannot demand loading and unloading works in the petitioner concern, which requires special skill and which is to be carried out with the help of machines. It has also been held thus that, if the machines are operated by skilled workers and if any assistance is required for the purpose of loading, like slinging or strapping the heavy sheets and coils, that also W.A No.1654/2021 & W.A No.899/2022 19 has to be done by workers, who are trained for that purpose. We are not in a position, in any manner, to hold that the abovesaid conclusions, arrived at by the learned Single Judge is unreasonable or illegal. On the other hand, we are of the view that the abovesaid conclusions, arrived at by the learned Single Judge in the impugned judgment, are correct and proper. However, the learned Single Judge has further held that if there is any manual headload work, the petitioner will have to necessarily engage the services of registered pool workers. As to the availability or otherwise of any manual based headload work, there has been great divergence between the writ petitioner management and the appellants.
21. We expressed our difficulties in adjudicating on certain factual disputes, which have emerged in the rival case set up by the writ petitioner management and the writ appellants. The workers have also fairly apprised us that this Court need not adjudicate on such issues as to the availability or otherwise of manual based headload work. This is essentially so, as the learned Advocates for the writ appellants would point out, that such factual disputes, as to the availability or otherwise of manual work, could be settled through adjudication, as envisaged in Section 21 of The Kerala Headload Workers Act, 1978. Counsel for the writ petitioner also does not have any serious objection to the said W.A No.1654/2021 & W.A No.899/2022 20 course of action suggested by the writ appellants. Further, the writ petitioner management has not challenged the specific direction issued by the learned Single Judge, in the latter part of paragraph 12 of the impugned judgment, that if there is any manual headload work, the writ petitioner will have to necessarily engage the services of the registered pool workers. The writ appellants would point out that 12 headload workers, including the two writ appellants in WA No.899/2022, have already secured registered headload pool worker status, in terms of Annexure-A1 proceedings dated 26.03.2021, issued by the Chairperson of the Kerala Headload Workers Welfare Board, in terms of Clause 6(a) of the Kerala Headload Workers (Regulation of Employment & Welfare), Scheme 1983. Hence, it is ordered that the impugned directions, issued by the learned Single Judge, for affording Police Protection to the petitioner, subject to the terms and conditions in the impugned judgment will stand confirmed. However, the issue as to the availability or otherwise of manual based headload work in the petitioner concern would require adjudication, in view of the factual disputes between the writ petitioner management and the writ appellants. Learned Advocates for the writ appellants in these cases would submit that the headload workers concerned have already W.A No.1654/2021 & W.A No.899/2022 21 preferred Annexure-A2 complaint (as produced in WA No.1654/2021) to the Assistant Labour Officer concerned and that the said complaint is one raised under Sec.21 of the Kerala Headload Workers Act, 1978. Going by the prescriptions in Sec.21 of the Act, a complaint of this nature will have to be initially entertained and considered by an officer of the rank of Assistant Labour Officer and thereafter, it is for him, if required, to refer the matter to the District Labour Officer.
22. Accordingly, it is ordered that the Assistant Labour Officer, Ernakulam will immediately take up for consideration the matter in Annexure-A2 complaint (as produced in WA No. 1654/2021) and, after affording reasonable opportunity to the writ appellants herein as well as to the writ petitioner management, may take further course of action thereon, in terms of Section 21 of the abovesaid Act, so that the matter could be concluded and finalised in accordance with the said provisions of the said Act in a time bound manner and within a reasonable time limit. The impugned directions and orders of the learned Single Judge in the impugned judgment in the WP(C) will stand modified and extended, as above. No other interdiction is called for in the matter. The respondent ALO and the respondent DLO may ensure that the proceedings, in terms of Section 21, on the matters raised in Annexure- W.A No.1654/2021
& W.A No.899/2022 22 A2 complaint may be finalized and completed without much delay, preferably within a period of 4 to 5 months.
With these observations and directions, the above Writ Appeals will stand disposed of.
Sd/-
ALEXANDER THOMAS JUDGE Sd/-
SHOBA ANNAMMA EAPEN JUDGE vgd / Nsd W.A No.1654/2021 & W.A No.899/2022 APPENDIX OF WA NO.1654/2021 RESPONDENTS' ANNEXURES ANNEXURE R1-(A) TRUE PHOTOGRAPH OF PRE-STRAPPED BUNDLES OF 40 FEET LONG TMT BARS WEIGHING 4 TO 15 TONS ANNEXURE R1-(B) TRUE PHOTOGRAPH OF PRE-STRAPPED BUNDLES OF MS FLAT WEIGHING 3 TONS TO 5 TONS ANNEXURE R1-(C) TRUE PHOTOGRAPH OF PRE-STRAPPED BUNDLES OF MS PLATE/SHEET WEIGHING 10 TONS TO 15 TONS ANNEXURE R1-(D) TRUE PHOTOGRAPH OF PRE- STRAPPED BUNDLES OF M.S ANGLES WEIGHING 5 TONS TO 10 TONS ANNEXURE R1-(E) TRUE PHOTOGRAPH OF PRE- STRAPPED BUNDLES OF BEAM/JOIST WEIGHING 5 TONS TO 10 TONS ANNEXURE R1-(F) TRUE PHOTOGRAPH OF COIL WEIGHING 5 TONS TO 30 TONS W.A No.1654/2021 & W.A No.899/2022 APPENDIX OF WA NO.899/2022 RESPONDENTS' ANNEXURES ANNEXURE R1-(A) TRUE PHOTOGRAPH OF PRE-STRAPPED BUNDLES OF 40 FEET LONG TMT BARS WEIGHING 4 TO 15 TONS ANNEXURE R1-(B) TRUE PHOTOGRAPH OF PRE-STRAPPED BUNDLES OF MS FLAT WEIGHING 3 TONS TO 5 TONS ANNEXURE R1-(C) TRUE PHOTOGRAPH OF PRE-STRAPPED BUNDLES OF MS PLATE/SHEET WEIGHING 10 TONS TO 15 TONS ANNEXURE R1-(D) TRUE PHOTOGRAPH OF PRE-STRAPPED BUNDLES OF M.S ANGLES WEIGHING 5 TONS TO 10 TONS ANNEXURE R1-(E) TRUE PHOTOGRAPH OF PRE-STRAPPED BUNDLES OF BEAM/ JOIST WEIGHING 5 TONS TO 10 TONS ANNEXURE R1-(F) TRUE PHOTOGRAPH OF COIL WEIGHING 5 TONS TO 30 TONS