Kerala High Court
M.Nujumudeen vs The City Police Commissioner Of Police on 29 June, 2011
Bench: R.Basant, K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15287 of 2011(I)
1. M.NUJUMUDEEN ,S/O.MYTHEEN KUNJU,
... Petitioner
Vs
1. THE CITY POLICE COMMISSIONER OF POLICE,
... Respondent
2. THE CIRCLE INSPECTOR OF POLICE,
3. THE SUB INSPECTOR OF POLICE,
4. THE HEAD LOAD WORKERS WELFARE FUND BOARD
5. SRI SHAHAL, CONVENOR,
6. SRI SALI,
7. SRI.SAJEEV CONVENOR,
8. SRI.SIDDIQUE,
9. SRI.SABU,
10. SRI.AKBAR,
11. SRI.SHAFI,
For Petitioner :SRI.B.MOHANLAL
For Respondent :SRI.KOSHY GEORGE, SC, KHLWWB
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :29/06/2011
O R D E R
R.BASANT & K.SURENDRA MOHAN, JJ.
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W.P(C) No.15287 of 2011(I)
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Dated this the 29th day of June, 2011
JUDGMENT
BASANT, J.
In an area to which the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 (hereinafter referred to the 1983 Scheme), is not made functional, is a headload worker without registration under Rule 26A of the Kerala Headload Workers Rules, entitled to work? Is an employer entitled to employ them? What if any, is the consequence of non registration in such an area where the scheme is not in functional operation? These questions arise for consideration in this case.
2. The facts are simple. The petitioner is an employer. There is headload work in his establishment. His workmen have not taken any registration under Rule 26A. Respondent Nos.5 to 11 represent headload workers in the area. We have no specific input as to whether such workmen represented by respondent Nos.5 to 11 have registration under Rule 26A or not. The petitioner has come to this Court with a grievance that his permanent workmen, who admittedly do not have registration under Rule 26A are being obstructed by W.P(C) No.15287 of 2011(I) -2- respondent Nos.5 to 11 in the performance of headload work done by them. This is not justifiable. Police protection is claimed to enable such permanent workmen without registration for undertaking the headload work in the establishment. The employer claims protection of his right to employ such workmen.
3. We have heard the learned counsel appearing for the petitioner and the learned counsel for respondent Nos.7 and 8. Assistance has been rendered to this Court by the learned standing counsel for the fourth respondent.
4. A perusal of the Kerala Headload Workers Act does not show that there is any prohibition under the Act against the undertaking of headload work by a headload worker, not having any registration. There is no prohibition against the employer employing such unregistered workmen. We have been taken through the provisions of Kerala Headload Workers Act, and we find and it is conceded that there is no such stipulation placing any embargo on headload workers without registration under Rule 26A undertaking headload work (or being employed) in any area to which the 1983 Scheme does not apply. The employer's right to employ such unregistered workers is W.P(C) No.15287 of 2011(I) -3- not in any way fettered by the statutory stipulations.
5. We then turned to the Rules. The Kerala Headload Workers Rules which enables registration under Rule 26A of the headload workers does not also contain any provision placing embargo on headload workers who have no registration under Rule 26A from taking up the headload work in a non-scheme covered area. The employer's right to employ such unregistered workermen is not in any way fettered by the Rules also. We have gone through Rule 26A in detail. The headload worker is given an option - indicated by the use of the expression "may" in Rule 26A(1) to apply for a registration. How such an application is to be considered and how, registration once given can be revoked etc., are all mentioned in Chapter IV of the Rules. To us, it appears to be significant and relevant that there is no embargo placed by any stipulation in the Rules also that a headload worker without registration under Rule 26A cannot be employed by the employer or cannot work in an area. For the purpose of easy reference we extract Rule 26A(1):-
"Any headload worker may submit his application for registration in Form IX to the Registering Authority concerned, with as many additional copies as there are employers or contractors from whom he claims to work."W.P(C) No.15287 of 2011(I) -4-
6. We have then been taken through the 1983 Scheme. The 1983 Scheme makes it clear by the stipulation of Clause (6) that a headload worker who is not a registered headload worker cannot be allowed or required to work as a headload worker in the area to which the 1983 Scheme applies from the date of commencement of functional operation of the Scheme in the area. We extract below Clause 6(1) for easy reference:-
"No headload worker who is not a registered headload worker under the provision of the Kerala Headload Workers Rules shall be allowed or required to work in any area to which the Scheme applies from the date of commencement of the functional operation of Scheme in the area."
7. It is thus evident that in an area where the 1983 Scheme is in functional operation, the headload worker without registration under Rule 26A cannot work as a headload worker. There is no dispute in this case and it is accepted that if the 1983 Scheme has come into functional operation, a headload worker without registration cannot work in the 1983 Scheme area. The Scheme has not admittedly been functional in the area within which the employer operates.
8. Our attention has been drawn to the Kerala Headload Workers (Attached Section) Welfare Scheme, 1995 and the Kerala W.P(C) No.15287 of 2011(I) -5- Headload Workers (Scattered Section) Welfare Scheme, 1999 (hereinafter referred to the 1995 Scheme and the 1999 Scheme). We have gone through and it is accepted that there is no prohibition in either of those two Schemes that a headload worker, who has not been registered under Rule 26A cannot work in any area as headload worker without such registration.
9. The learned standing counsel for the fourth respondent submits that an observation by a learned Single Judge to whom the case was referred on account of disagreement between two Judges of Division Bench had opined that such registration is essential. The learned counsel relies on the following observation in paragraph (18) of Karunakara Kurup v. State of Kerala (2002 (2) KLT 776 ):-
"18. It is seen from Ext.P2 that the alleged permanent workers had not filed any application under R.26A(1) seeking registration under the Act. I have already referred to the fact that irrespective of whether the Scheme was applicable to the area of work or not registration under R.26A was essential.-
(emphasis supplied)
10. The learned standing counsel raised a contention that in the light of the said observation in paragraph (18), registration under Rule 26A must be held to be essential for any headload worker to W.P(C) No.15287 of 2011(I) -6- work in an area whether, any of the Schemes are applicable or not to that area. We have carefully gone through the decision in Karunakara Kurup (supra). In that case, the question did not arise as to whether the unregistered headload worker can work at all in an area to which any of the Schemes are not applicable. The learned Judge had observed that such registration was essential but, did not obviously consider the consequence of non-registration in an area where the Schemes have not become functional. We are unable to conclude from the said observation by the learned Single Judge that registration under Rule 26A "was essential" that non-registration would place a fetter on the right of the unregistered worker to work and the right of his employer to employ him in the area where the 1983 Scheme is not functional. That observation does not appear in the context of discussion as to whether, such an unregistered worker can at all work and whether there is any embargo on such workers working in an area not covered by 1983 Scheme.
11. The question appears to have been raised before the Full Bench in Raghavan v. Superintendent of Police (1998 (2) KLT
732). Paragraph 18 to 20 may be relevant. In paragraph (18), it is W.P(C) No.15287 of 2011(I) -7- observed "therefore, all headload workers whether permanently employed in an establishment or not are to get registration under R.26A". In paragraph (19), the learned Judges had raised the question as to what will be the consequence, if headload workers do not get registered under Rule 26A. That question in relation to non Scheme covered area is not considered in detail. However, in paragraph (20) of the said decision, the Full Bench had observed that:
"20. If, in an area where the Scheme is made applicable, the employer requires services of headload workers other than those whom he had permanently employed, he has necessarily to get them allotted through the committee. But, in an area where the Scheme is not made applicable and therefore there is no committee, we find no provision under the Act and the Rules which would compel the employer to engage a headload worker who has got registration under R.26A. Therefore, it has to be taken that he is entitled to engage workers of his own choice".
(emphasis supplied)
12. Here again, we find that the question as to whether the headload worker not having registration under Rule 26A, is at all, entitled to work in a non Scheme covered area, had not received the pointed attention of the Full Bench also. It will be apposite straightaway to note that Karunakara Kurup (supra) was only an opinion expressed by the third Judge to whom the matter was W.P(C) No.15287 of 2011(I) -8- referred by the Division Bench for opinion. It is doubtful whether that opinion can operate as dictum. However, the same matter received the attention of the Full Bench in Karunakara Kurup v. State of Kerala (2004 (1) KLT 215 (F.B)). In that decision, it appears that it has been held that in an area which is not covered by the Scheme, the employer has a right/option to employ any headload worker of his choice. Here again, the precise question - the impact of non registration under Rule 26A in an area not covered by any Scheme, was not considered at all.
13. Having considered the question from the nature of the statutory stipulations, the Rules and the Schemes, it appears to be evident to us that registration under Rule 26A is optional and no consequences flow from non registration under Rule 26A. Non registration under Rule 26A does not import any embargo against employment of the headload worker. Such unregistered worker may not work in an area where the 1983 Scheme has become functional. The 1983 Scheme alone places an embargo under Clause (6) against employment of unregistered headload worker in an area, where that Scheme is functional. The other two schemes also do not incorporate W.P(C) No.15287 of 2011(I) -9- a stipulation that an unregistered headload worker cannot be employed or cannot undertake work in an area to which those Schemes are applicable.
14. Therefore, the obvious conclusion is that, notwithstanding the fact that a worker has no registration under Rule 26A, he can work and he can be employed by any employer in any area in which the 1983 Scheme has not become functional. Where the other two Schemes(the 1995 Scheme and the 1999 Scheme) have become functional also, under the Act or the Rules or those schemes, there is no embargo against such employment of unregistered headload workers.
15. The unregistered headload worker in an area where the 1983 Scheme is not now functional may suffer by such non registration, in that, if 1983 Scheme is made applicable later his seniority may be lost. He may also lose the advantage of Schemes if any, introduced for the benefit of such registered headload workers. We have no hesitation to agree that the headload workers would do well to get themselves registered under Rule 26A, even when the Schemes are not made specifically functional in such area. But non W.P(C) No.15287 of 2011(I) -10- registration does not entail any consequence of embargo against working by or employment of such unregistered workmen.
16. From the above discussion, it follows that under the Act, the petitioner is not bound to employ any workman represented by respondents 5 to 11. There is no prohibition against employment of unregistered workers. Consequently, the petitioner is entitled for protection as prayed for. Under Section 21 of the Act, the dispute between the petitioner and respondent Nos.5 to 11, as to who must be given work must certainly be resolved by conciliation or adjudication. We make it clear that the grant of police protection will not fetter the rights of respondent Nos.5 to 11 to raise such disputes or the power or jurisdiction of the authorities to come to appropriate decision under Section 21.
17. With the above observations, this petition is allowed. Respondents 1 to 3 are directed to afford police protection to the petitioner to get the work of loading and unloading in his establishment done by his employees against any obstruction that may be raised by respondent Nos.5 to 11. This, we make it clear, is without prejudice to the right of respondent Nos.5 to 11 to approach W.P(C) No.15287 of 2011(I) -11- the authorities under Section 21 of the Kerala Headload Workers Act to get their dispute with the petitioner resolved by conciliation/adjudication.
Sd/-
R.BASANT, JUDGE Sd/-
K.SURENDRA MOHAN, JUDGE //TRUE COPY// P.A TO JUDGE krj