Kerala High Court
Manal Kayattirakku Thozhilali Union vs The Appellate Authority Under The ...
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
THURSDAY, THE 16TH DAY OF AUGUST 2012/25TH SRAVANA 1934
WP(C).No. 8633 of 2012 (D)
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PETITIONER(S):
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1. MANAL KAYATTIRAKKU THOZHILALI UNION, AGED 35 YEARS
(CITU), OLAVANNA P.O., KOLATHARA
CHUNGAM KADAVU, KOZHIKODE-673019
REPRESENTED BY ITS CONVENER T.ABDUL SALAM.
2. INTUC, OLAVANNA P.O.,
KOLATHARA, CHUNGAM KADAVU, KOZHIKODE - 673019
REPRESENTED BY ITS CONVENER SIDHIQUE.
3. STU, OLAVANNA P.O.,
KOLATHARA, KOLATHARA CHUNGAM KADAVU
KOZHIKODE-673019
REPRESENTED BY ITS CONVENER MUJEEB C.
BY ADVS.SMT.A.K.PREETHA
SRI.C.ANIL KUMAR
RESPONDENT(S):
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1. THE APPELLATE AUTHORITY UNDER THE KERALA HEADLOAD WORKERS
ACT
(REGIONAL JOINT LABOUR COMMISSIONER), KOZHIKODE
CIVIL STATION, KOZHIKODE-673020.
2. OLAVANNA-KOLATHARA-CHUNGAM MANAL THOZHILALI CO-ORDINATION
COMMITTEE,, REPRESENTED BY K.ASSANKOYA, SHAH NIVAS
VAPPANCHERRY P.O., OLAVANNA, KOZHIKODE.
3. THE DISTRICT LABOUR OFFICER, CIVIL STATION,
KOZHIKODE-673020.
BY ADV. SRI.P.V.KUNHIKRISHNAN
BY GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-08-
2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 8633 of 2012 (D)
APPENDIX
PETITIONERS EXHIBITS
P1 ORDER NO.IR(1) 3499/11 DATED 13-12-2011 PASSED BY 3RD RESPONDENT
P2 COPY OF THE MEMORANDUM OF APPEAL FILED BY THE 2ND RESPONDENT
BEFORE 1ST RESPONDENT
P3 COPY OF COUNTER STATEMENT FILED BY THE PETITIONERS BEFORE THE 1ST
RESPONDENT IN EXT.P2 APPEAL
P4 COPY OF ORDER NO.HWA 1/12 DATED 14-3-2012 PASSED BY THE 1ST
RESPONDENT
RESPONDENTS EXHIBITS NIL
TRUE COPY\
P.A. TO JUDGE
SMM
K.SURENDRA MOHAN,J.
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WP(C).No.8633 of 2012
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Dated this the 16th day of August, 2012
J U D G M E N T
The petitioners are trade unions. According to them, they represent 115 loading/unloading workers registered under Section 26 A of the Kerala Headload workers Rules, 1981 ('the Headload Workers Rules' for short). They are aggrieved by Ext.P4 order passed by the first respondent under Section 21(7) of the Kerala Headload Workers Act, 1978 ('the Act' for short). The second respondent is the coordination committee of sand mining workers of the Olavanna-Kolathara-Chungam kadavu.
2. The workers of the second respondent are sand mining workers who are engaged in the mining of sand from the river through the Olavanna-Kolathara-Chungam kadavu. The workers of the second respondent bring up sand from the river bed and load the sand into country W.P.(C)No.8633 of 2012 : 2 : boats which are then brought to the Olavanna-Kolathara- Chungam kadavu. From the country boats, the sand is loaded into baskets by the workers of the petitioner and thereafter placed on the heads of the workers of the 2nd respondent. The baskets are then carried by the sand mining workers to the trucks that are parked at a distance away from the kadavu for being transported to various places. The dispute between the workers of the petitioners as well as the second respondent is regarding the sharing of the work as well as the wages. The third respondent in exercise of his powers under Section 21 of the Headload Workers Act, tried to work out a settlement of the dispute. Since he did not succeed, in exercise of his power under Section 21(4) of the Act, he decided the issue as per Ext.P1 order. It has been ordered in Ext.P1 that the work of collecting sand from the riverbed and conveying the same to the river bank shall be continued to be done by the members of the second respondent, while the work of carrying the sand from the country W.P.(C)No.8633 of 2012 : 3 : boats to the trucks for the purpose of transportation shall be done by the members of the petitioners. The workers shall be paid wages for the respective portion of the work done by each section of workers.
3. Being aggrieved by the direction in Ext.P1, the second respondent challenged the same before the first respondent who is the Appellate Authority under the Act. The Appellate Authority as per Ext.P4 considered the matter afresh and found that there was a customary practice of apportioning the work among the workers of the petitioners and the workers of the second respondent. As per the customary practice, the members of petitioners were doing only the work of filling the baskets with the sand that was mined and loading the same on to the heads of sand mining workers for the purpose of transportation to the trucks. The actual transportation of the sand to the trucks was also being undertaken by the sand mining workers. For the above reason, as per Ext.P4, half of the amount that was claimed by the W.P.(C)No.8633 of 2012 : 4 : members of the petitioners as wages was directed to be given to the members of the second respondent. The petitioners are aggrieved by the above direction in Ext.P4.
4. According to Smt.A.K.Preetha, the counsel for the petitioners, the directions in Ext.P4 are absolutely without jurisdiction and are liable to be set aside. Ext.P1 was not liable to be interfered with in exercise of the appellate power of the first respondent, as per Ext.P4. It is contended that the authorities under the Headload workers Act had no jurisdiction to enter upon or to attempt a conciliation of the dispute between the members of the petitioners and the second respondent for the reason that the same was not a dispute coming within the definition of the said term contained in Section 2(h) of the Act. Drawing my attention to the definition of employer in section 2(i) of the Act, it is pointed out that the members of the petitioners being unattached headload workers have no employer other than the W.P.(C)No.8633 of 2012 : 5 : committee appointed under Section 18 of the Act. For the above reason, the establishments enumerated in the schedule of the Act cannot be relied upon to find that the members of the petitioners have no right to claim work with respect to areas that are not mentioned in the schedule. Since the dispute between the petitioners and the second respondent is not one coming within the definition of the said term contained in Section 2(h), It is contended that both the proceedings Exts.P1 and P4 suffer from want of jurisdiction. It has been held by a Division Bench of this Court in Basheer v. District Police Chief (2012 (2) KLT 1) that the scheme would not extend to the areas that are not specified in the schedule appended to the Act. That the provisions of the Headload Workers Act are not applicable to the areas like the present one through which sand is mined. For the above reasons, it is contended that the impugned order Ext.P4 is liable to be set aside.
5. The contentions of the counsel for the W.P.(C)No.8633 of 2012 : 6 : petitioners are opposed by Shri. Hanson P.Mathew who appears for the second respondent. According to the counsel, the major portion of the activity in mining sand from the river bed, conveying the same to the country boats and thereafter to the river bank are undertaken by the members of the second respondent. The only portion of the work done by the members of the petitioners is to load the sand into baskets and to place them on to the heads of the sand mining workers, who are also doing the work of carrying the the sand and loading the same to the trucks for transportation thereof. For the above reason, it is contended that the sand mining workers are entitled to a portion of the amount that is claimed by the members of the petitioners as loading charges also. It is pointed out that there is a difference in the practice that is followed in the present kadavu from other places where the sand is carried to the trucks by the sand mining workers themselves. Reliance is placed by the counsel on the decision reported in Basheer v. District Police W.P.(C)No.8633 of 2012 : 7 : Chief (Supra) to contend that the provisions of the Headload Workers Act have no application to the Kadavu in this case. It is also pointed out that the area is not a scheme covered area. It is therefore contended that the order passed by the first respondent is just and equitable and therefore, it does not call for any interference at the hands of this Court.
6. I have heard the counsel for the petitioners, the counsel for the second respondent as well as the learned Government Pleader. I have been taken through the relevant provisions of law and also through the pleadings as well as the documents produced. I have considered the rival contentions, anxiously.
7. It is not in dispute that though the usual practice in other places is for the sand that is brought to the shore by the sand mining workers to be transported to the waiting trucks for onward transportation by headload workers, in the present kadavu, the headload workers were attending only to the work of filling the baskets with W.P.(C)No.8633 of 2012 : 8 : sand and placing the same on the heads of the sand mining workers. The sand was carried and filled into the waiting trucks by the sand mining workers themselves. According to the counsel for the petitioners, though the headload workers are ready and willing to carry the sand and to load it on to the waiting trucks, the sand mining workers are permitted to do the said work only because they insist on doing the said work themselves. Their insistence is stated to be for the purpose of ensuring that the sand is spread out evenly so as to ensure that the measurement of the sand is done in a manner advantageous to them. It was taking note of the circumstances under which the loading work was also attended to by the sand mining workers themselves that the third respondent had directed the headload workers to be paid the unloading charges in full. The above factual aspects are more or less agreed to by the counsel representing the contesting parties, namely, the petitioners and the second respondent. Therefore, on W.P.(C)No.8633 of 2012 : 9 : facts it is clear that the sand mining workers are attending to the work of carrying sand to the lorries on their insistence, for the purpose of obtaining an advantage in the matter of ascertainment of the volume of sand filled by them. In view of the fact that a portion of the headload work is permitted to be done by the sand mining workers so as to give them an opportunity to derive some benefit in the matter of measurement of the sand, there is no justification for the contention that a portion of the wages of the headload workers should also be given to them. The Appellate Authority while passing the impugned order Ext.P4 has not taken note of the above vital distinction on facts. Therefore, it has to be held that the Appellate Authority has gone wrong in upsetting the order of the third respondent, Ext.P1. As per Ext.P1, third respondent has ordered that the headload workers who are members of the petitioners shall be entitled to the loading charges at the rate of `200/- per lorry load charged by them. It has also been W.P.(C)No.8633 of 2012 : 10 : ordered that the headload workers shall do the headload work while the sand mining workers shall do only the work of mining sand and bringing the same to the shore. Both in Exts.P1 and P4 it has been noticed that in the Olavanna-Kolathara-Chungam kadavu the practice was different from that prevailing at the other places in that, the sand mining workers were permitted to carry the sand from the country boats on their heads to the waiting trucks. Such a practice has been working smoothly, without giving cause for any complaints during the past. Therefore, there is no justification for effecting any change in the said practice now. With respect to the sharing of the loading charges that are being collected exclusively by the headload workers who are members of the petitioners, the contesting parties are not in a position to come to an agreement. The headload workers are not willing to part with any portion thereof though the sand mining workers insist on being paid some portion of the said amount. In the above W.P.(C)No.8633 of 2012 : 11 : circumstances, if the sand mining workers still insist that they should be paid a portion of the loading charges collected by the headload workers, the only solution is to permit the headload workers to attend to their work while the sand mining workers attend to their portion of the operations. If the sand mining workers are willing to carry the sand from the country boats to the waiting vehicles for transportation on their head without being paid any additional amount, they may continue to do. If they insist on any additional payment, the said portion of the work should also be done by the headload workers who are collecting the charges. It is made clear that if the sand mining workers are willing to do any portion of the work that is to be done by the headload workers without any additional payment, only then they would be permitted to do such work.
In the above view of the matter Ext.P4 is set aside. Ext.P1 is restored with the only modification that if the sand mining workers are willing to carry on the work of W.P.(C)No.8633 of 2012 : 12 : transporting sand on their heads to the waiting lorries and to load them without claiming payment of any additional charges as hitherto done, they may do so. Since I have proceeded to dispose of the matter on facts, I refrain from considering the questions of law that were raised and argued before me by the counsel for the petitioners. They are left open. Writ petition is ordered accordingly.
K.SURENDRA MOHAN, JUDGE kkj kkj