Kerala High Court
Budget Foods Pvt. Ltd vs The District Labour Officer on 20 May, 2022
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
WP(C) NO. 16481 OF 2022
PETITIONER:
BUDGET FOODS PVT. LTD., DOOR NO.XII/447A, KALPETTA,
VYTHIRI, WAYANAD DISTRICT, PIN-673 121, REPRESENTED BY
ITS DIRECTOR MUNEER P., S/O MOOSA, AGED 32 YEARS,
RESIDING AT PALOLLATHIL HOUSE, PURAMERI,
P.O.MUTHUVANDATHUR, KOZHIKODE-673 503.
BY ADV R.RAMADAS
RESPONDENTS:
THE DISTRICT LABOUR OFFICER,
OFFICE OF THE DISTRICT LABOUR OFFICER, CIVIL STATION,
KALPETTA, WAYANAD, PIN-673 121.
THE ASSISTANT LABOUR OFFICER,
OFFICE OF THE ASSISTANT LABOUR OFFICER,
KALPETTA, WAYANAD DISTRICT, PIN - 673 121.
KERALA HEADLOAD WORKERS WELFARE FUND BOARD,
REPRESENTED BY ITS SECRETARY/EXECUTIVE OFFICER,
PALAKKUNNEL BUILDING, MUNDERI ROAD, KALPETTA,
WAYANAD DISTRICT, PIN-673 121.
GP - SRI JOSHY THANIKAMATTOM ,
SRI THOMAS ABRAHAM SC KHWWB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 16481 OF 2022
2
JUDGMENT
Petitioner has approached this Court by laying challenge to the orders Ext.P6 dated 07.03.2022 and an appellate order dated 10.05.2022 Ext.P7 passed by the Assistant Labour Officer and District Labour Officer respectively rejecting the application of the petitioner for registration of four headload workers as per Rule 26A of the Kerala Headload Workers Rules, 1981.
2. Succinctly, the facts in brief are that the petitioner company is registered under the provision of the Indian Companies Act and conducting a hyper market business. It has already started two hyper markets in Kozhikode district and had taken on lease a building in Kalpetta Municipality, Wayanad district for starting the hyper market business. Necessary permissions from all the other statutory authorities have already been taken. For carrying out the aforementioned activity, had appointed four permanent workers for doing the loading and unloading work within the aforementioned business premises, who are all experienced. All of them had submitted application for registration WP(C) NO. 16481 OF 2022 3 as evidenced from Exts.P1 to P4 respectively.
3. Learned counsel appearing on behalf of the petitioner submitted that the provision for registration of the permanent worker is provided under Rule 26A of the Headload Workers Rules. Since the respondents did not consider the application, petitioner was constrained to approach this Court in W.P.(C).No.4561/2022 and this Court vide judgment dated 11.02.2022 Ext.P5 directed the authority to decide the application within 45 days. The aforementioned application has been dismissed on the ground that comments from the Board that the area is scheme covered area has not been received and since the hyper market had not been set up, there was no need for issuance of new identity cards for loading and unloading workers as it will cause reduction of employment opportunity to the registering workers. The aforementioned reasoning according to reservation is against the dicutm of this Court rendered in W.P.(C).No.27087 of 2020 decided on 23.09.2021.
4. Sri.Joshy Thannikamattom accepts notice on behalf of respondent Nos.1 and 2. Sri.Abraham Thomas accepts notice for WP(C) NO. 16481 OF 2022 4 respondent No.3.
5. It is submitted on behalf of the respondent No.3 that the view of the board that the area in question is a scheme covered area, is required to be given but however did not receive intimation from the concerned officer, which lead to an observation in the order of having not submitted the reply, but do not deny the judgment on the issue as referred by the learned counsel for the petitioner.
6. I have heard the learned counsel for the parties and appraised the paper book.
7. While considering the similar controversy, this Court in paragraph 11 to 15 of the judgment dated 23.9.2021 in W.P(C).27087/2020 had given the following observation:
11. The reason for rejecting the application of petitioners 2 to 4 for registration as headload workers is stated as when the second respondent inspected the employer's establishment on 06.09.2018 he could not find any headload worker, as contemplated under the Act and that petitioners 2 to 4 were employed for other works in the packing section. The said reason defies logic and is irrational. To be a headload worker as contemplated under the Act, one must be a registered WP(C) NO. 16481 OF 2022 5 headload worker. A worker is not treated as a headload worker unless he is registered under the Act. After the scheme is made applicable to the area from 01-01-2018, first petitioner cannot engage any person for headload work, other than registered headload worker. Thus on the date of inspection, Le., on 06.09.2018, there could never have been any workman of the petitioner engaged for doing the work of loading and unloading in the establishment of the petitioner. The reason stated by the respondents to reject the application for registration of petitioners 2 to 4 as headload workers in the first petitioner's establishment is to say the least puerile. The respondents' reasoning to reject the application-that one should have done headload work in the establishment to be a headload worker, would also lead to an anomalous situation, where, no new persons could never be registered as a headload worker in a scheme covered area. The Act does not contemplate such an interpretation, and if adopted, it would render the Act redundant and unworkable. If such an interpretation is adopted, it will create a situation where the existing registered headload workers alone would be able to continue the work of loading and unloading, to the exclusion of all those new entrants to work. The inclination or willingness to do headload work along with consent of the employer to employ the person as a headload worker, will satisfy the requirements of the Act and Scheme to obtain registration as a headload worker.
12. In this context, it may be relevant to refer to the judgment in Rajeev v. District Labour Officer (MANU/KE/2333/2010:
2010 (4) KLT 783) where this Court in similar lines had observed that "If for working as a headload worker in a scheme WP(C) NO. 16481 OF 2022 6 covered area, registration under R. 26A is mandatory, it defies logic as to how for registration under R. 26A, respondents 1 and 2 can insist that applicants who apply for registration under R. 26A should be already headload workers working under the employer as proved by registers maintained as per Rules. For example take the case of a young man who comes of age and decides to pursue headload work as an avocation and means of livelihood for himself and his family. He finds an employer, but the employer tells him that he cannot employ him as a headload worker unless he gets a registration under R. 26A, which the employer is bound to insist upon in view of Cl. 6 of the Scheme. He files an application under R. 26A. Can he be denied registration on the ground that he is not already headload worker working under the said employer? I do not have to think twice to give a big 'NO' as an answer because that is the only logical answer. If answer It registration is denied to such an individual that would be a violation of his fundamental right under Art. 19(1)(g) of Constitution of India, which guarantees to every citizen of India the right to practice any profession, or to carry on any occupation, trade or business. No legislation can deny that fundamental right to a citizen. If there is legislation denying such a right to any citizen that would be unconstitutional and liable to be struck down as such or read down to make it constitutional. Therefore, if R. 26A a pre-supposes employment as a headload worker under an employer, for being eligible for registration under R. 26A, that Rule would be unconstitutional in so far as it would violate the fundamental right of a citizen to engage himself in and carry on the profession of a headload worker, since under Cl. 6 of the Scheme without registration under R. 26A, he cannot WP(C) NO. 16481 OF 2022 7 engage himself in headload work. Consequently, R. 26A has to be construed and read down so as to make it constitutional. It is true that in Form No IX, which is the form prescribed for submitting application for registration under R.26A, name and address of the employer under whom the headload worker is working and the date of commencement of work under the employer are to be given. But under Cl. 6 of the scheme, no headload worker who is not a registered headload worker under the provisions 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 the scheme in that area. If without registration nobody can work as a headload worker, I fail to understand how a person who wants to start work as a headload worker for the first time can be insisted on to prove that he was already working under the employer as a condition for entertaining an application for registration. Therefore I am of opinion that R. 26A and the Form IX should be so construed and read down that for getting registration, what is required is a good physic and, an employer who is prepared to engage the applicant as a headload worker and it is not necessary that he should have already been working under the employer under whom he seeks registration as headload worker for becoming eligible for such registration.
13. In another similar situation this Court had in Muhammed Kunju and Others v. District Labour Officer and Others (W.P. (C) No. 2959 of 2018) held that "Coming to the appellate order, the reasons stated by the appellate authority are that there is no evidence to show that the establishment exists and WP(C) NO. 16481 OF 2022 8 that the workers have been appointed by the employer to carry on the loading and unloading works in the establishment by issuing appointment orders. As noted above, petitioners 2 to 8 are seeking registration under Rule 26A of the Rules for the purpose of carrying out the loading and unloading works in the establishment of the first petitioner. As such, if they are granted the registration sought by them, they cannot work elsewhere, but only in the establishment of the first petitioner.
When applications for registration are preferred for working as attached headload workers, the scope of the enquiry by the competent authority is only to see as to whether they are eligible in terms of the provisions of the Act and the Rules to be engaged as headload workers. The issue as to whether the establishment is functioning after obtaining all the requisite licences and permissions is not a matter for the authorities under the Headload Workers Act to consider while granting or declining registration under Rule 26A of the Rules. Likewise, it is also not the look out of the authorities under the Headload Workers Act to see whether appointment orders are issued by the employer to the employee, when the employer. categorically asserts that he has engaged the employee, and employee does not dispute the said fact. In the said view of the matter, according to me, the order passed by the appellate authority is also unsustainable. In the absence of any finding by the authorities below that the petitioners 2 to 8 are not eligible to be registered as headload workers in accordance with the Act and the Rules, according to me, they are entitled to the registration sought by them"
14. It may not be out of place in this context to refer to a WP(C) NO. 16481 OF 2022 9 Division Bench judgment of this Court in Gangadharan v. Abdul Nasir (MANU/KE/1625/2016 2016 (4) KLT 592). The said decision, was considering the question whether the existing registered unattached workers in the area are entitled to be heard when an application for registration for other workers in the area are being considered. It was observed that the applicant for registration as headload worker has a constitutional right to life which cannot be denied merely for the reason that somebody else, who has already got a berth may have to adjust a bit more with the available infrastructure. It was further observed that nobody could contend that those who became fortuitous to have obtained registration earlier could alone continue as such, denying similar rights to the others.
15. Thus, while considering an application for registration as a headload worker under Rule 26A of the Rules, the registering officers' look out is not whether the applicant was a headload worker or not, prior to such registration. As held in Rajeev v. District Labour Officer (MANU/KE/2333/2010 2010 (4) KLT
783), the said provision has already been read down to mean that the look out for the registering officer must be only as to whether the applicant has the physique to be employed as a headload worker and also as to whether the employer is prepared to engage the applicant as headload worker. There is no requirement under law that the applicant must have been working under the employer as a headload worker for becoming eligible for such registration.
The controversy in this case is squarely covered by the WP(C) NO. 16481 OF 2022 10 observations/directions contained in the judgment extracted above. The orders Exts.P6 and P7 are not in accordance with the the aforementioned directions and are not sustainable, hereby set aside. Directions are issued to the 2 nd respondent to register the workers employed by the petitioner as headload workers under the petitioner and issue identity cards to them within a period of 30 days from the date of receipt of copy of this judgment.
Writ petition is disposed off.
Sd/-
AMIT RAWAL JUDGE nak WP(C) NO. 16481 OF 2022 11 APPENDIX OF WP(C) 16481/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE APPLICATION SUBMITTED BY YOOSUF P.K, A PERMANENT WORKER APPOINTED BY THE PETITIONER Exhibit P2 TRUE COPY OF THE APPLICATION SUBMITTED BY NICODIM EKKA, A PERMANENT WORKER APPOINTED BY THE PETITIONER DATED 06.01.2022 Exhibit P3 TRUE COPY OF THE APPLICATION SUBMITTED BY KRISHNA ORAON, A PERMANENT WORKER APPOINTED BY THE PETITIONER DATED 06.01.2022 Exhibit P4 TRUE COPY OF THE APPLICATION SUBMITTED BY JAGADEESH YADAV, A PERMANENT WORKER APPOINTED BY THE PETITIONER DATED 06.01.2022.
Exhibit P5 TRUE COPY OF THE JUDGMENT DATED
11.02.2022 IN W.P.(C).NO.4561/2022
Exhibit P6 TRUE COPY OF THE ORDER DATED 07.03.2022
ISSUED BY THE 2ND RESPONDENT WITH ENGLISH
TRANSLATION OF THE SAME.
Exhibit P7 TRUE COPY OF THE ORDER DATED 10.05.2022
ISSUED BY 1ST RESPONDENT WITH ENGLISH
TRANSLATION OF THE SAME.