Olavanna-Kolathara-Chungam Sand ... vs Manal Kayattirakku Thozhilali Union ... on 16 August, 2012

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Kerala High Court

Olavanna-Kolathara-Chungam Sand ... vs Manal Kayattirakku Thozhilali Union ... on 16 August, 2012

The appellant challenges the judgment of the learned Single Judge, which reversed the order of the appellate authority and confirmed that of the original authority. The dispute is between the workers licensed under the Kerala Protection of River Banks & Regulation of Removal of Sand Act, 2001 (hereinafter referred to as the "sand mining employees") and those licensed under the Kerala Headload Workers Act, 1978 (hereinafter referred to as the "headload workers"). The loading work, of the sand mined, in the area covered under the Scheme under the Kerala Headload Workers Act, 1978 (for brevity "Headload Workers Act"), is the disputed question. The appellant is representing the sand mining employees and the respondents 1 to 3 and 6 to 8 represent the headload workers.

W.A.No.1869 of 2012 - 2 -

2. There is no dispute that the workers who raised the conflicting claims are registered workers under two separate enactments. It is also not disputed that the mining of sand is to be carried out by the sand mining workers and the specified headload work, as indicated in the Headload Workers Act, in a scheme covered area, is to be carried out by the headload workers. Sand mining from rivers is conducted on country boats in which the mining workers go beyond the restricted limit as per the Kerala Protection of River Banks & Regulation of Removal of Sand Act, 2001 (for brevity "Sand Act") and mine sand from the river bed and collect it in the country boats. The sand mined from the river bed and collected in the country boats are brought to the bank, specifically to the ghats on the river bank. The work, till then, undisputedly is to be carried on by the sand mining workers.

3. The dispute is with respect to the loading of the sand, so mined, into the lorries of the purchasers. The sand mining workers maintained that even that is to be carried on by them, since the price fixed on the basis of the load per country boat or per lorry is their responsibility and it is for them to ensure that the sand is properly loaded to the lorries. However, since customarily W.A.No.1869 of 2012 - 3 - the headload workers were also involved in that work, the practise followed was to permit the headload workers to fill the baskets with sand from the country boats and lift it on to the head of the sand mining workers, who carries it to the lorries and unload it on to the lorries. For the loading work, i.e., specifically from the country boats to the lorries, the workers share the wages on a 50-50 basis. The headload workers, however, maintained that there is no such customary practise and the sand mining workers have only the licence to carry on the sand mining work and the minute it reaches the banks of the river, like any other goods, it is their exclusive right to load it on to the lorries.

4. When the dispute arose and the headload workers claimed the entire loading work of sand from the country boats to the lorries, the matter was referred to the concerned Labour Officer. Though negotiations were initiated by the Assistant Labour Officer and the Deputy Labour Officer, the dispute could not be resolved. Hence, the issue was considered under Section 21(4) of the Headload Workers Act. The District Labour Officer, by Exhibit P1, found that the work connected with the mining of sand from the river or backwaters to the 'Kadavu' has to be done by the sand W.A.No.1869 of 2012 - 4 - mining workers and the work of loading sand from the 'Kadavu' to the vehicles is to be done by the headload workers. The appellant herein, being aggrieved by the decision, approached the appellate authority under the statute. Both the parties were heard by the appellate authority and an order was passed, evidenced by Exhibit P4, which was impugned in the writ petition.

5. The appellate authority found that the contention of the sand mining workers regarding the loading and unloading work from the country boats to the vehicles was the practise validly carried on in the area. A report was also called for from the Assistant Labour Officer, which supported the contention of the sand mining workers that the loading from country boat to vehicles were carried on by the sand mining workers and headload workers together and that the wages for that work was shared equally. The appellate authority by Exhibit P4 reversed the order of the original authority and upheld the claim of the sand mining workers.

6. The learned Single Judge, however, disagreed with the appellate authority and restored Exhibit P1, after setting aside Exhibit P4. The learned Single Judge found that the loading work as projected by the sand mining workers was done in that manner W.A.No.1869 of 2012 - 5 - only on their insistence in carrying sand from the boats to the vehicle. The insistence was on the ground of ensuring that the sand is spread out evenly in the vehicles and the measurement is done meticulously so as to not visit the sand mining workers with any disadvantage. While upholding the right of the headload workers to do the entire loading work from the boats to the vehicles, the learned Single Judge also observed that if the sand mining workers wanted to ensure proper measurement at the time of loading of the vehicles and they insisted on carrying out the loading work; then they can do so, but at peril of no payment for such work. This finding was on the premise that it is the exclusive premise of headload workers to carry on the loading and unloading work.

7. We cannot, but notice the binding precedent of another Division Bench of this Court in Basheer v. District Police Chief [2012 (2) KHC 82 (DB)]. The counsels appearing for both the sides placed their different interpretation of the said judgment, before us. Looking at the judgment, the case was one in which police protection was sought by headload workers of an area, who alleged interference in their loading work by the sand mining workers. The sand mining workers, who were the respondents in W.A.No.1869 of 2012 - 6 - the said writ petition, contended that they are the workers licensed under the Sand Mining laws of Kerala and they have a right to carry on the mining activities including the loading of sand on to vehicles. The Division Bench considered the question whether the activity concerned was with respect to an establishment under the Schedule of Headload Workers Act. We extract the findings of the Division Bench in paragraph 8:

"No doubt, reading of this provision would indicate, if the provision of the Act or Scheme is in conflict with any other law or Scheme, the Headload Workers provision will hold the field and nothing comes in the way of the application of the Act. Therefore, one has to see whether the establishment in question is a covered establishment under the schedule of Headload Workers Act. Schedule I indicates several establishments to which Headload Workers Act would apply. According to the learned counsel for the petitioners, Serial No.8 of the first Schedule applies to the case on hand which refers to Bus stands, Boat Jetties, landing places of country crafts. Except a reference is made to boat jetties, it does not refer to other activities connected with river. There is no indication in any manner. It is also learnt from the submissions that boat jetties are used not only for transportation of persons from place to place, but also to bring their goods along with them. Therefore, it would only mean that, if any assistance of headload worker is required while manning boat jetties, such work has to be W.A.No.1869 of 2012 - 7 - entrusted to the registered headload workers, if the area falls within the Scheme covered area. So far as sand mining is concerned, though it is a Scheme covered area, as there is no application of the activity in question to the Schedule, especially with reference to Serial No.8, we are of the opinion, Section 39 has no application to the facts of the present case".

The Court categorically found that when sand mining is concerned; though the activity is carried on in a Scheme covered area, the work is not one covered under the Schedule to the Headload Workers Act. In fact though the Division Bench directed the police to ensure that no law and order problem is created, the prayer for police protection made by the headload workers was rejected. Hence, this Court, after considering the Headload Workers Act and the Sand Act, has found that when mining of sand is involved, the headload workers have no authority to even load the sand on to the trucks, since the same does not come under the Schedule of the Headload Workers Act.

8. The learned Senior Counsel appearing for the respondents would alertly point out that landing places of country crafts are also included in item No.8 of the Schedule. We have looked at item No.8, which includes "Bus stands, Boat jetties, W.A.No.1869 of 2012 - 8 - landing places of country crafts". We again look at the cited decision, wherein this item was noticed. The Division Bench had clearly held that the jetties referred to therein are for transportation of persons from place to place and what is entitled to the headload workers is the right to carry the goods that are transported along with persons. We are in agreement with the above interpretation of the Schedule, especially since the words in the particular item should take colour and meaning from the other words included therein. Bus stands, Boat jetties and landing places of country crafts essentially indicates commutation of people who may carry, bring or be accompanied by goods also. The thrust of the various activities included in the Schedule would definitely indicate that the emphasis is on the "goods". "Sand" by no stretch of imagination can be brought within the ambit of the Schedule to the Headload Workers Act.

9. However, we notice that in the instant case the appellate authority had called for a report from the subordinate Labour Officer, who had indicated the practise and custom carried on in the area, where the dispute arose in the present petition. The appellant too concede to such customary practise and has no W.A.No.1869 of 2012 - 9 - objection to the loading activity from boats to vehicles being carried on in the manner indicated above. The appellants too concede 50% of the wages of that work to the headload workers. In that context, despite our finding above that the headload workers have no manner of right, we are of the opinion that the order of the appellate authority is to be sustained. Hence the equal sharing of loading wages, for the loading work from country craft to lorries, is sustained.

For the reasons stated above, we set aside the judgment of the learned Single Judge and uphold the order of the appellate authority, Exhibit P4. Writ Appeal is allowed, leaving the parties to suffer their respective costs.

Sd/-

Manjula Chellur, Chief Justice Sd/-

K.Vinod Chandran, Judge.

vku/-

( true copy )

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