Kerala High Court
Thomas T.K vs M/S Alleppey Parcel Service Llp
Author: K.T.Sankaran
Bench: K.T.Sankaran, A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
THURSDAY, THE 14TH DAY OF JULY 2016/23RD ASHADHA, 1938
WP(C).No. 21339 of 2016 (N)
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PETITIONERS :
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THOMAS T.K.
AGENT, M/S. ALLEPPEY PARCEL SERVICE L.L.P,
BUILDING NO. 40/8708, SREENIVASA MALLAN ROAD,
ERNAKULAM, KOCHI 682 035.
BY ADVS.SRI.V.SANTHARAM
SRI.P.S.SISHOY
SRI.LAKSHMEESH.S.KAMATH
RESPONDENTS :
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1. M/S ALLEPPEY PARCEL SERVICE LLP
REGIONAL OFFICE AT DOOR NO. XL/7130,
TD ROAD, ERNAKULAM, KOCHI 682 035,
[HAVING HEAD OFFICE AT VAZHICHERRY WARD,
ALAPPUZHA, PIN 688 001] REPRESENTED BY
ITS DESIGNATED PARTNER THOMAS KURUVILA.
2. THE REGIONAL JOINT LABOUR COMMISSIONER
KAKKANAD, KOCHI 682 030.
3. THE DISTRICT LABOUR OFFICER
KAKKANAD, ERNAKULAM, KOCHI 682 030.
4. THE ASSISTANT LABOUR OFFICER
ERNAKULAM II CIRCLE, KAKKANAD, KOCHI 682 030.
5. THE KERALA HEADLOAD WORKERS WELFARE BOARD
DISTRICT COMMITTEE, KUMMENCHERY BUILDING,
T.D ROAD, ERNAKULAM, REPRESENTED BY ITS
CHAIRMAN, PIN 682 035.
W.P.(C) NO.21339/2016
6. THE COMMISSIONER OF POLICE
CITY POLICE OFFICE, ERNAKULAM, KOCHI 682 035.
7. THE CIRCLE INSPECTOR OF POLICE
CENTRAL CIRCLE OFFICE,
ERNAKULAM 682 035.
8. ERNAKULAM JILLA VAANIJYA VYAVASAYA MAZDOOR SANGHAM (BMS)
ERNAKULAM DISTRICT COMMITTEE, I.S PRESS ROAD,
KOCHI 682 018, REPRESENTED BY GENERAL SECRETARY.
9. ALL KERALA PARCEL SERVICE EMPLOYEES UNION [CITU]
ERNAKULAM DISTRICT COMMITTEE, CANON SHED ROAD,
KOCHI 682 011, REPRESENTED BY DISTRICT SECRETARY.
10. ARAJAN K.P
KAITHAVALAPPIL, BEACH WARD,
THIRUVAMPADI P.O, ALAPPUZHA 688 002.
11. BABU M.G
MANGALATHU HOUSE, KADAKKARAPPALLI,
CHERTHALA, 688 529.
12. SAJI THOMAS
PANAVELI PURAYIDOM,
ARATTUVAZHY, ALAPPUZHA 688 001.
13. GIREESH KUMAR K.A
KANDATHIL HOUSE, ESI WARD, THIRUVAMPADI P.O,
ALAPPUZHA 688 002.
14. JOSEPH MATHAYI
THOTTUVELICHIRA, KADAKKARAPPALLI P.O,
CHERTHALA, ALAPPUZHA 688 529.
15. OUSEPH K.T
KARIYADI PARAMBIL, VATTAYAL WARD,
ALAPPUZHA 688 002.
16. RAJU M.M
MANJADICKAL, KADAKKARAPPALLI,
CHERTHALA, 688 529.
17. SHAJI K
KOCHINGAM PARAMBIL, KANAL WARD, ALAPPUZHA.
W.P.(C) NO.21339/2016
18. SHAMSUDEEN T.A
THAIPPARAMBU, KANAL WARD,
ALAPPUZHA 688 007.
19. SIVAKUMAR P.S
PUTHENPURACKAL, BEACH WARD,
ALAPPUZHA WEST, 688 012.
20. SASI K
VALIYA VEEDU, KADAKKARAPPALLI,
CHERTHALA, PIN 688 529.
21. UTHAMAN K.P
KAITHAVALAPPIL, VATTAYL WARD,
THIRUVAMPADI P.O, ALAPPUZHA 688 002.
22. KUNJAPPAN A.A
MANJADICKAL, KADAKKARAPPALLI P.O,
CHERTHALA, 688 529.
23. RAGESH K. NIKARTHIL
IKYABHARATHAM, ARYAD, ALAPPUZHA,
PIN 688 002.
24. CHITHRAN T
KIZHAKKAEPURACKAL CHIRA, VADHUTHALA JETTY P.O,
ARUKKUTTI, PIN 688 535.
25. MATHEW ABRAHAM
CHETTIVELIKKAKAM, THONDANKULANGARA WARD,
ALAPPUZHA PIN 688 013.
26. ASHOKAN K.R
KANDATHIL, MALIKAMUKKU, KANJIRAMCHIRA,
ALAPPUZHA PIN 688 007.
27. SELVARAJ P.P
PANDAKASALA PARAMBU, KADAKKARAPPALLI P.O,
CHERTHALA, PIN 668 529.
28. GOPI G
KOCHUPARAMBU, KADAKKARAPPALLI P.O,
CHERTHALA, PIN 688 529.
29. SUDHEESH V
KANNANTHARAVELI, MANNANCHERY P.O,
ALAPPUZHA 688 538.
30. UNNIKRISHNAN N.G
MUNDIYATH PRABHAKARA, MRRA 99, EDAPPALLY NORTH,
A.I.M.S P.O, KOCHI, PIN 682 024.
W.P.(C) NO.21339/2016
31. SANTHOSH KUMAR R
SANTHOSH NIVAS, KADAKKARAPPALLI P.O,
CHERTHALA, PIN 68,O8 529.
32. ANIL KUMAR.T.P.
THAIPPARAMBU, ESI, WARD
THIRUVAMPADI P.O., ALAPPUZHA PIN 688 002.
33. VINOD KUMAR R
KRISHNA BHAVANAM, CHENAVELI, MARARIKKULAM,
ALAPPUZHA 688 549.
R5 BY ADV. SRI.C.S. AJITH PRAKASH, SC, KHWWB
R2,R 3,R 4,R 6,R 7 BY ADV. STATE ATTORNEY
R1 BY ADV. SRI.K.JAJU BABU (SR.)
R1 BY ADV. SMT.M.U.VIJAYALAKSHMI
R8,R10,R11,R13,R16,R21,R22,R25,R27-R33 BY ADV.
SRI.P.RAMAKRISHNAN
R8,R10,R11,R13,R16,R21,R22,R25,R27-R33 BY ADV. SMT.PREETHI
KESAVAN
R8,R10,R11,R13,R16,R21,R22,R25,R27-R33 BY ADV. SRI.C.ANIL
KUMAR
R8,R10,R11,R13,R16,R21,R22,R25,R27-R33 BY ADV.
SRI.T.C.KRISHNA
R8,R10,R11,R13,R16,R21,R22,R25,R27-R33 BY ADV. SMT.ASHA
K.SHENOY
R8,R10,R11,R13,R16,R21,R22,R25,R27-R33 BY ADV. SRI.PRATAP
ABRAHAM VARGHESE
R24 BY ADV. SRI.T.B.SIVAPRASAD
R24 BY ADV. SRI.ABHILASH AKBAR
R BY GOVERNMENT PLEADER SRI.P.P.THAJUDHEEN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-07-2016,
ALONG WITH W.P(C) NO.21338/2016 AND CONNECTED CASES, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 21339 of 2016 (N)
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APPENDIX
PETITIONERS' EXHIBITS :
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EXHIBIT P1. COPY OF THE AGENCY AGREEMENT DATED 19.12.15.
EXHIBIT P2. COPY OF THE FORM NO.IX APPLICATION DATED 19.2.16
SUBMITTED BY MR.BHABEN PEGU ALONG WITH NO OBJECTION
CERTIFICATE DATED 19.2.16 ISSUED BY THE PETITIONER AND
MEDICAL CERTIFICATE DATED 20.2.16 ISSUED BY DR.VIJO
GEORGE, INTERVENTIONAL CARDIOLOGIST, GENERAL HOSPITAL,
ERNAKULAM.
EXHIBIT P3. COPY OF THE FORM NO.IX APPLICATION DATED 19.2.16
SUBMITTED BY MR.MADON BASUMATARY ALONG WITH NO
OBJECTION CERTIFICATE DATED 19.2.16 ISSUED BY THE
PETITIONER AND MEDICAL CERTIFICATE DATED 20.2.16 ISSUED BY
DR.VIJO GEORGE, INTERVENTIONAL CARDIOLOGIST, GENERAL
HOSPITAL, ERNAKULAM.
EXHIBIT P4. COPY OF THE JUDGMENT DATED 7.4.16 OF THIS HONOURABLE
COURT IN WPC 13998 OF 2016.
EXHIBIT P5. COPY OF THE REPRESENTATION DATED 25.4.16 ALONG WITH
ACKNOWLEDGMENT CARD.
EXHIBIT P6. COPY OF THE ORDER NO.HLW-125/2016 DATED 11.5.16 PASSED
BY THE 4TH RESPONDENT.
EXHIBIT P7. COPY OF THE APPEAL NO. H-4987/16 DATED 13.6.16 WITH STAY
PETITION (EXCLUDING ANNEXURES) FILED BEFORE THE 3RD
RESPONDENT ALONG WITH PROOF OF FILING APPEAL.
EXHIBIT P8. COPY OF THE REPRESENTATION DATED 22.2.16 ALONG WITH
ACKNOWLEDGMENT CARD.
EXHIBIT P9. COPIES OF THE PROTEST LETTERS DATED 26.2.16.
EXHIBIT P10. COPY OF THE REPRESENTATION DATED 6.5.16 ALONG WITH
ACKNOWLEGEMENT.
EXHIBIT P11. COPY OF THE APPLICATION DATED 6.5.16 AND THE RECEIPT
SHOWING THE REQUIRED FEES REMITTED BY THE PETITIONER
BEFORE THE 5TH RESPONDENT.
ADDITIONAL EXHIBITS:
EXHIBIT P12. COPY OF THE APPLICATION FOR CORPORATION LICENSE ALONG
WITH ITS RECEIPT DATED 27.5.2016.
EXHIBIT P13 : COPY OF THE APPLICATION FOR LABOUR REGISTRATION
APPLICATION ALONG WITH CHALAN DATED 21.1.2016.
W.P.(C) NO.21339/2016
RESPONDENTS' EXHIBITS :
---------------------------------
EXT.R1(a) : COPIES OF TWO AGENCY AGREEMENTS EXECUTED BY THIS
RESPONDENT WITH DIFFERENT AGENTS IN PULPALLY IN WAYANAD
AND BOMMASSANDRA IN BANGALORE.
EXT.R1(b) : COPY OF THE TRANSFER ORDER DATED 6.2.2016 ISSUED TO THE
31ST RESPONDENT.
EXT.R1(c) : COPY OF THE NOTICE DATED 26.2.2016 ISSUED BY THE 1ST
RESPONDENT.
EXT.R1(d) : COPY OF THE REPRESENTATION DATED 25.4.2016 SENT BY
REGISTERED POST.
EXT.R1(e) : COPY OF THE NOTICE DATED 27.4.2016 UNDER FORM X
EXT.R1(f) : COPY OF THE OBJECTION DATED 14.5.2016 FILED BEFORE THE 4TH
RESPONDENT.
EXT.R1(g) : COPY OF THE APPEAL PETITION NO.4983 OF 2016 (EXCLUDING THE
ANNEXURES) ALONG WITH STAY PETITION.
EXT.R1(h) : COPY OF THE REPRESENTATION DATED 8.2.2016 SUBMITTED
BEFORE THE THIRD RESPONDENT.
EXT.R1(i) : COPY OF THE REPRESENTATION DATED 20.2.2016 SUBMITED BY THE
8TH RESPONDENT BEFORE THE 1ST RESPONDENT.
EXT.R1(j) : COPY OF THE NOTICE ISSUED BY THE THIRD RESPONDENT DATED
20.2.2016.
EXT.R1(k) : COPY OF THE MINUTES NO.C-1186/2016 DATED 2.5.2016 OF THE
MEETING BEFORE THE THIRD RESPONDENT.
EXT.R1(l) : COPY OF THE NOTICE DATED 27.6.2016 ISSUED BY THE THIRD
RESPONDENT.
EXT.R1(m): COPY OF THE NOTICE HL-27/2016 DATED 17.6.2016 ISSUED BY THE
RESPONDENT UNDER FORM NO.X.
EXT.R1(n) : COPY OF THE PETITION FILED BY THE 1ST RESPONDENT ON
29.6.2016 BEFORE THE 4TH RESPONDENT.
//TRUE COPY//
P.A. TO JUDGE
K.T.SANKARAN & A.HARIPRASAD, JJ.
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W.P.(C) Nos.21338, 21339, 21340,
21341 & 21342 of 2016
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Dated this the 14thday of July, 2016
JUDGMENT
K.T.Sankaran, J.
M/s.Alleppey Parcel Service LLP (first respondent) was running parcel service all over India. The first respondent had five branches at T.D.Road, Ernakulam and other places and had employed several employees as well. The employees included loading and unloading workers as well.
2. The petitioners in these Writ Petitions entered into separate agency agreements with the first respondent evidenced by Exhibit P1 agreements in the respective Writ Petitions. The terms and conditions under which the agencies are to be carried out are specified in the agreements.
W.P.(C) No.21338/2016 & conn. cases 2
3. The petitioners in these Writ Petitions who are agents of M/s.Alleppey Parcel Service LLP, the first respondent, are entitled to employ their own workers going by the terms of the agreement. The petitioners say that they have employed headload workers and made applications for registering them under Rule 26A of the Kerala Headload Workers Rules. Those applications were rejected against which appeals have been filed by the petitioners as well as their employees. The appeals are pending.
4. According to the petitioners, the party respondents are forcibly doing the work of loading and unloading and extracting money from them. The petitioners having not secured registration for those headload workers who are appointed by them and the area being covered under the Kerala Headload Workers (Regulation of Employment and Welfare) W.P.(C) No.21338/2016 & conn. cases 3 Scheme, the petitioners are bound to employ the pool workers under the Scheme. They are prepared to do so. In various representations, the petitioners have made clear that they are entitled to and they are ready to employ the pool workers under the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme and the fifth respondent was requested to deploy pool workers. The petitioners apprehend obstruction by the party respondents. Therefore, they have approached this Court with a prayer for police protection to be afforded for the smooth running of the agency by employing sufficient number of registered pool workers on temporary basis for doing loading and unloading work till the issue of registration of attached workers of the petitioners under Rule 26A of the Kerala Headload Workers Act is finally settled. There is an alternative prayer that the petitioners may be permitted to engage their own attached workers and sufficient protection may be afforded for W.P.(C) No.21338/2016 & conn. cases 4 carrying out the loading and unloading operations by employing them.
5. The first respondent filed a counter affidavit in which the following among other things are stated. The first respondent has altogether 224 booking and delivery offices within Kerala and other States. Out of 224 booking and delivery offices, 119 are run by the agents appointed by the first respondent at various places within Kerala and outside. For running the business, the first respondent employed not only headload workers, but other staff like booking clerks, cash clerks, depot clerks, watchmen, attendants etc. were employed. The first respondent is a "motor transport undertaking" as defined under Section 2(g) of the Motor Transport Workers Act. The first respondent is having a total of 58 goods vehicles. Due to financial constraints and continuous labour problem, the first W.P.(C) No.21338/2016 & conn. cases 5 respondent decided to hand over the five branches at Ernakulam to five agents (Those five agents are the petitioners in the Writ Petitions). Till November-December 2015, all these five branches were run by the first respondent. According to the first respondent, after the agency agreements were executed, it has no control over the business run by the agents. All the agents have to employ their own headload workers. It is also stated that the party respondents were not the workers attached to the first respondent in any of the branches at Ernakulam. The workers of the first respondent were transferred to different places in order to continue their employment with the first respondent, but those employees did not take charge at the transferred places. The disputes between the party respondents, the first respondent and the agents were conciliated, but no settlement could be arrived at before the District Labour Officer having jurisdiction. In the conciliation meeting, the petitioners W.P.(C) No.21338/2016 & conn. cases 6 were also present. All of them participated in the meeting and expressed their stand. The matter was not settled. It was reported to the Regional Joint Labour Commissioner. It is submitted that the Joint Labour Commissioner sent back the matter to the District Labour Officer for further conciliation and the conciliation proceedings are going on.
6. On behalf of the party respondents, a counter affidavit has been filed in which the contentions are the following, among other :
The eighth respondent trade union represents the majority of the loading and unloading workers of the first respondent establishment. The first respondent is a parcel service agency and in Ernakulam itself they have got five godowns. The petitioners in the Writ Petitions are not really the agents of the first respondent. They were the employees of the first W.P.(C) No.21338/2016 & conn. cases 7 respondent and in order to deny employment to the members of the eighth respondent, some paper transactions have been effected under the name of agency. The members of the eighth respondent continued to be the workers of the first respondent. The Writ Petitions have been filed with the active connivance and direction of the first respondent. The party respondents have never created any law and order situation or any obstruction to the business in the godown. It is also submitted that the Writ Petitions are devoid of merit and they are liable to be dismissed.
7. The Kerala Headload Workers Welfare Board had filed a statement in W.P.(C) No.21338 of 2016 in which it is stated that the Board is prepared to supply sufficient number of pool workers for the loading and unloading operations in the establishment of the petitioners as and when required. W.P.(C) No.21338/2016 & conn. cases 8
8. The question whether there was really agency agreements between the petitioners and the first respondent is a matter which cannot be decided in these Writ Petitions. There is no case for the party respondents that they are employees of the petitioners. Their claim is that they are the employees of the first respondent and the agency agreements were created only to deny employment to them. That is also not a matter to be resolved in these Writ Petitions. The right of the Writ Petitioners to conduct trade at the five places covered by Exhibit P1 agreements in the respective Writ Petitions cannot be denied. The petitioners are not bound to employ the party respondents for the purpose of loading and unloading operations. The disputes between the first respondent on the one hand and the party respondents (Employees) on the other hand is a labour dispute which has to be resolved in accordance with law. The Writ Petitioners have the right to employ pool W.P.(C) No.21338/2016 & conn. cases 9 workers so long as the petitioners do not have registered headload workers under Rule 26A of the Kerala Headload Workers Rules. The petitioners are prepared to employ the pool workers. The fifth respondent is also prepared to supply sufficient number of pool workers. The loading and unloading operations are to be carried without any let or hindrance. The Kerala Headload Workers Act and Rules and the Scheme are framed for the welfare of the Headload workers as well as all persons connected with the employment including employers. Under the guise of a dispute between the first respondent and the party respondents, the rights of the pool workers cannot be denied. The rights of the petitioners to employ workers for their choice also cannot be denied. The question whether the persons employed by the petitioners are entitled to the registration is a matter pending in appeal before the appellate authority. In these admitted and proved facts and circumstances, W.P.(C) No.21338/2016 & conn. cases 10 we are of the view that the petitioners are entitled to the reliefs prayed for in the Writ Petition.
9. Accordingly, there will be a direction to respondents 6 and 7 to afford adequate and effective police protection for the smooth carrying out of the loading and unloading operations in the establishments of the writ petitioners by employing the pool workers registered under the Kerala Headload Workers Rules, so long as the petitioners do not have their own registered headload workers. If the petitioners get registration for their own workers, they will be entitled to employ them in preference to the pool workers and if any obstruction is caused by the party respondents or any other person, sufficient police protection shall be afforded for the smooth conduct of the loading and unloading operations in the establishment. The Writ W.P.(C) No.21338/2016 & conn. cases 11 Petitions are allowed to the above extent.
This judgment will not stand in the way of resolution of the disputes between the first respondent and the party respondents.
K.T.SANKARAN JUDGE A.HARIPRASAD JUDGE csl