Kerala High Court
P.T.Rajan vs The District Labour Officer on 11 August, 2016
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 11TH DAY OF AUGUST 2016/20TH SRAVANA, 1938
WP(C).No. 7118 of 2009 (H)
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PETITIONERS:
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1. P.T.RAJAN, S/O.PERAVAN, AGED 65,
SECRETARY, KOZHIKODE DISTRICT HEAD LOAD
WORKER'S UNION C.I.T.U, ANNIE HALL ROAD, KOZHIKODE.
2. E.UMMARKOYA, SECRETARY,
HEADLOAD AND GENERAL WORKERS UNION, S.T.U.
RAMANATTUKARA, KOZHIKODE.
BY ADV. SRI.NIRMAL. S
RESPONDENTS:
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1. THE DISTRICT LABOUR OFFICER,
CIVIL STATION, KOZHIKODE.
2. THE ASSISTANT LABOUR OFFICER,FEROKE,
KOZHIKODE.
3. M.VEERANKUTTY, M.V.HOUSE,
THOTTUNGAL, RAMANATTUKARA, KOZHIKODE.
4. THE KERALA HEAD LOAD WORKERS WELFARE
BOARD, REP. BY CHAIRMAN, V.K.BUILDING
CHEROOTY RD, KOZHIKODE.
ADDL.R5 IMPLEADED
ADDL.R5 UNION OF INDIA, REPRESENTED BY ITS SECRETARY
MINISTRY OF LABOUR & EMPLOYMENT, SHRAM SHAKTI BHAVAN
RAFI MARG, NEW DELHI - 110 001.
ADDL.R5 IMPLEADED AS PER ORDER DATED 11.8.2016 IN
I.A. NO.14155/2014
R3 BY ADV. SRI.R.RAMADAS
R1 & R2 BY SR. GOVERNMENT PLEADER SRI.SAIGY JOSEPH PALATTY
R4 BY ADV. SRI.KOSHY GEORGE
R4 BY ADV. SRI.JOY GEORGE, SC, KHWWB
RADDL.R5 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11-08-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 7118 of 2009 (H)
APPENDIX
PETITIONER'S EXHIBITS
P1: TRUE COPY OF REGISTRATION CERTIFICATE DATED 1.6.2007 ISSUED BY
THE THIRD RESPONDENT
P2: TRUE COPY OF ORDER NO.HLW 4732 TO 47440/08 DATED 15.2.2008
P3: TRUE COPY OF APPEAL FILED BY THE 1ST PETITIONER DATED 7.3.2008
P4: TRUE COPY OF JUDGMENT IN W.P.(C) 6779/2008 DATED 18.8.2008
P5: TRUE COPY OF ORDER DATED 4.4.2008 ISSUED BY THE 2ND RESPONDENT
P6: TRUE COPY OF APPEAL DATED 7.4.2008 ISSUED BY THE PETITIONERS
P7: TRUE COPY OF ORDER NO.IR(1)2096/08 DATED 8.7.2008 ISSUED BY THE
2ND RESPONDENT
P8: TRUE COPY OF ORDER DATED 14.10.2008 ISSUED BY THE PETITIONER
P9: TRUE COPY OF ORDER DATED 25.11.2008 ISSUED BY THE 1ST
RESPONDENT
//TRUE COPY//
P.A.TO JUDGE
JJJ
K. VINOD CHANDRAN, J.
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W.P.(C) No. 7118 of 2009 (H)
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Dated: 11th August, 2016
J U D G M E N T
The petitioners, the Secretaries of two Headload Workers' Unions, are aggrieved by Ext.P8 order passed by the District Labour Officer. The petitioners, by the writ petition, challenge the order and claim loading and unloading work to the pool members in the notified area, under which the 3rd respondent is carrying on his business. The 3rd respondent, however, has registered nine workers, one certificate of which is produced as Ext.P1; which registration is under Rule 26A of the Kerala Headload Workers Rules, 1981 ('Rules of 1981' for short).
2. The petitioners' contentions are many fold; one, that the nine workers, being citizens of Nepal, W.P.(C) No. 7118/2009 -2- have to be registered under the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 ('Act of 1979' for short). The further contention is that registrations were made without hearing the Board. There is also an argument that two appeals filed by the respective petitioners before the District Labour Officer were disposed of by two separate orders at Exts.P7 and P8. The contention is that one appeal was considered in Ext.P7 and a remand was ordered directing the Assistant Labour Officer to pass fresh orders after hearing the Headload Workers' Welfare Board. Subsequently, when the other appeal came up for hearing, the District Labour Officer decided Ext.P8, while the remanded proceeding was pending before the Assistant Labour Officer. Yet another contention is taken that the 3rd respondent registered the workers in a construction site and there W.P.(C) No. 7118/2009 -3- is no establishment as such going on. The learned Counsel for the petitioners also argue, relying on sub section (3) of Section 13 of the Headload Workers Act, 1978, ('Act of 1978' for short) that if any question arises as to the application of a scheme to any class of headload workers, the matter shall be referred to the Government. The said contention is raised on the ground that the 3rd respondent had merely registered the workers for a construction site.
3. The contention with respect to sub section (3) of Section 13 of the Act of 1978 and the 3rd respondent having registered the workers for a construction site is interlinked and can be considered together. The specific argument of the learned Counsel for the 3rd respondent is that the construction was intended for starting a business in the constructed building. It is also submitted that a three floor commercial building was W.P.(C) No. 7118/2009 -4- constructed in the site and a business was started, which establishment is being carried on even now. In such circumstance,the contention based on Section 13 (3) of the Act of 1978, need not be considered as of now.
4. The contention based on Act of 1979 can be answered by citing the definition of 'inter-State migrant workman' available in Section 2(e), which is as hereunder:
"(e) "inter-State migrant workman' means any person who is recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State, whether with or without the knowledge of the principal employer in relation to such establishment;"
W.P.(C) No. 7118/2009 -5-
Hence, a migrant workman who comes to the State of Kerala and seeks an employment directly cannot be said to be covered under the said definition. The definition clause deals with any such workman being employed through or by a contractor, which is also intended at ensuring that no exploitation is made of such workman by the intermediary.
5. The Treaty of Peace and Friendship dated 31st July, 1950, between the Government of India and the Government of Nepal, as placed before this Court by the learned Assistant Solicitor General, as directed by this Court by interim order dated 11.02.2015, clearly indicates that citizens of Nepal are allowed free entry into the territories of India and even without a visa and hence, the enactment would not have any application to such persons.
W.P.(C) No. 7118/2009 -6-
6. The further contention is on Ext.P8 order. True, there is an anomaly insofar as Ext.P7, having ordered a remand and then Ext.P8 order being passed by the District Labour Officer on the very same subject matter. This Court would have remanded the matter for a fresh consideration, but for the fact that the above matter has been pending here for seven long years.
7. The 3rd respondent has also been carrying on the loading and unloading work in his establishment with his attached workers. The right of an individual establishment to entrust such loading and unloading work to their attached workers is declared by Majeed M. v. District Labour Officer, Palakkad and Others
- 2015 KHC 2400, Muhammed Shafeek and Others v. District Labour Officer, Palakkad and Others - 2015 (1) KHC 550 and Alfred Thomas v. State of Kerala and Others - 2015 (5) KHC 275.
W.P.(C) No. 7118/2009 -7-
8. A reading of Ext.P8 would also indicate that the Faroke Assistant Labour Officer, who granted registration, had filed a report dated 06.10.2008 before the appellate authority, informing the appellate authority that the Kerala Headload Workers' Welfare Board was heard before the registration was granted under Rule 26A of the Rules of 1981. The Assistant Labour Officer had also reported that prior to such report, he had inspected the premises on 04.10.2008, wherein it was found that only the nine attached workers were carrying on the loading and unloading activities.
For all the above reasons, the writ petition is found to be devoid of merit and the same is dismissed. No Costs.
Sd/-
K.VINOD CHANDRAN, JUDGE jjj 12/8/16