IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 WP(C).No. 20193 of 2009(T) -------------------------- PETITIONER(S): ---------------------- KAVALAPPARA AARYAM KAVU BHAGAVATHY SEVA SAMITHI, REPRESENTED BY ITS MANAGING TRUSTEE, R.VALSALA AMMA, W/O.LATE VENUGOPALA MENON, 'KAVALAPPARA HOUSE', (AMBAL NIVAS), WEST FORT ROAD, PALAKKAD. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE ADV. SRI.RAJESH R. KORMATH RESPONDENT(S): ------------------------ 1. THE SUB INSPECTOR OF POLICE, SHORNUR, SHORNUR POLICE STATION, PALAKKAD DISTRICT. 2. THE CIRCLE INSPECTOR OF POLICE, OTTAPPALAM, OFFICE OF THE CIRCLE INSPECTOR OF POLICE, OTTAPPALAM, PALAKKAD DISTRICT. 3. THE SUPERINTENDENT OF POLICE, PALAKKAD, OFFICE OF THE DISTRICT SUPERINTENDENT OF POLICE, PALAKKAD. 4. C.I.T.U., CHUMATTU THOZHILALI UNION, REPRESENTED BY ITS SECRETARY, VADAKKEKKARA UNIT, KAVALAPPARA P.O. SHORNUR MUNICIPALITY, PALAKKAD DISTRICT. ADDL. R5 IMPLEADED. 5. THE KERALA HEADLOAD WORKERS WELFARE BOARD, PALAKKAD LOCAL COMMITTEE, REPRESENTED BY ITS CHAIR PERSON. ADDL. R5 IMPLEADED AS PER ORDER DTGED 31.7.2009 IN I.A. 9072/09. BY GOVT.PLEADER SRI. P.A. SALIM. BY ADV. SRI. N. REGHURAJ FOR R4 ADV. SMT. AMMINIKUTTY FOR R4 ADV. SRI.KOSHY GEORGE, SC, KHLWWB FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON 11/08/2009 DELIVERED THE FOLLOWING: WPC. 20193/2009. APPENDIX PETITIONER'S EXTS: EXT. P1 : TRUE COPY OF THE REGISTERED TRUST DEED DATED 13.2.2009 OF SUB REGISTRAR'S OFFICE, PALAKKD. EXT. P2 : TRUE COPY OF THE ASSIGNMENT DEED DATED 21.2.2005 OF SUB REGISTRAR'S OFFICE, SHORNUR. EXT. P3 : TRUE COPY OF THE APPROVED PLAN DATED NIL OF THE PROPOSED COMMUNITY HALL. EXT. P4 : TRUE COPY OF THE COMPLAINT DATD 24.6.2009 PREFERRED BEFORE FIRST RESPONDENT. EXT. P5 : TRUE COPY OF THE COMPLAINT DATED 24.6.2009 PREFERRED BEFORE SECOND RESPONDENT. EXT. P6 : TRUE COPY OF THE COMPLAINT DATED 24.6.2009 PREFERRED BEFORE THIRD RESPONDENT. EXT. P7 : TRUE COPY OF RECEIPT DATED 25.6.2009 ISSUED BY FIRST RESPONDENT. EXT. P8 : TRUE COPY OF RECEIPT DATED 25.6.2009 ISSUED BY SECOND RESPONDENT. EXT. P9 : TRUE COPY OF RECEIPT DATED 25.6.2009 ISSUED BY THIRD RESPONDENT. EXT. P10 : TRUE COPY OF THE AGREEMENT DATED 15.5.2006 ENTERED INTO BETWEEN M/S. PARAMOUNT CONSTRUCTIONS, OTTAPPALAM AND THE MANAGING TRUSTEE OF THE PETITIONER. EXT. P11 : TRUE COPY OF THE LETTER DATED 2.2.2008, ADDRESSED TO THE PETITIONER BY SHAKTHI TILES (INDIA) PRIVATE LIMITED. RESPONDENTS' EXTS: EXT. R4(a) : TRUE PHOTOCOPY OF THE AGREEMENT ENTERED INTO BETWEEN M/S. PARAMOUNT CONSTRUCTION COMPANY AND THE 4TH RESPONDENT UNION. EXT. R4(b) : TRUE PHOTOCOPY OF THE COMPLAINT DATED 29.2.2008 SUBMITTED BY THE LEADER OF POOL NO.8 OF SHORNUR SUB COMMITTEE. EXT. R4(c) : TRUE PHOTOCOPY OF THE LETTER DATED 29.2.2008 ISSUED BY THE CHAIRMAN OF HEADLOAD WORKERS WELFARE FUND BOARD. P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 20193 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of August, 2009. JUDGMENT Bhavadasan, J, Kavalapara Arayam Kavu Bhagavathy Seva Samithi, a charitable trust decided to construct the community hall intended to be used for religious and social functions. The flooring is to be laid with marble. It is stated that in the month of March, 2008, when a consignment of 769 square meters of marble slabs purchased by the petitioner were brought in two containers to the construction site, about ten to twenty persons claiming to be members of the fourth respondent union claimed that they alone are entitled to unload the slabs and they will not permit anybody else to do the same. It is pointed out that in fact flooring was to be done by Sakthi Tiles (India) Private Limited, who had their own employees for marbling the floor. Since the members of the fourth respondent union obstructed WPC. 20193/2009. 2 the unloading of the marble, petitioner sought the help of respondents 1 to 3, but they were unable to do anything in the matter. Therefore the Managing Trustee was constrained to divert the consignment to his house at Palakkad. Since there was a dispute, the labourers, who came from Rajasthan for flooring returned to their native place. It is pointed out by the petitioner that the work is nearing completion and flooring is to be done immediately. For that purpose, more marble slabs will have to be brought and the marble slabs kept at Palakkad, too will have to be brought to the site. The petitioner apprehends threat and obstruction from members of the fourth respondent union. Trust had preferred Exts.P4 to P6 complaints dated 24.6.2009. Petitioner has mentioned in detail the necessity for him to seek protection. It is alleged that the site where the community hall is put up cannot be called as an establishment and does not fall within the ambit of Kerala Headload Workers Act and also that unloading of marble WPC. 20193/2009. 3 slabs is only incidental. The members of the fourth respondent Union have no right to claim that they alone shall be engaged for the purpose of unloading the marble slabs. Therefore, the petitioner seeks a writ of mandamus directing respondents 1 to 3 to provide necessary police protection for the purpose of loading and unloading the articles at the work site. 2. The fourth respondent union has filed a counter affidavit pointing out that the allegations are without any basis whatsoever. They pointed out that the petitioner is not entitled to any relief. The fourth respondent was represented by the Secretary of the union. According to this respondent there is no cause of action for the petitioner since the only unpleasant incident even according to the petitioner had occurred in March, 2008. No other incident is referred to by the petitioner to show that the members of the fourth respondent union had done anything to arrest the progress of the construction. They say that the construction of the WPC. 20193/2009. 4 community hall is entrusted to M/s. Paramount Construction Company, Ottapalam. Ever since the work was entrusted to them, the members of the fourth respondent union had been engaged for loading and unloading the materials required for the construction of the hall. They had entered into an agreement with them, which is produced as Ext.R4(a). An year ago the marble slabs were brought for unloading. The members of the fourth respondent union belonging to pool No.8 under the Shornur Sub Office of the Headload Workers Welfare Fund Board requested that they be permitted to unload the consignment. They would say that no particular skill is required to unload the marble slabs. The members of the fourth respondent union are competent and well equipped to unload marble slabs. They would also point out that the community hall is being put up in a scheme covered area and therefore the headload workers had a right to claim the work. The relevant communication is produced as Ext.R4(c). The claim of WPC. 20193/2009. 5 the petitioner that the community hall does not fall within the ambit of the definition of 'establishment' cannot be accepted. Pointing out that this is a deliberate attempt to deny work to the members of the fourth respondent union in some pretext or other, they pray for dismissal of the writ petition. 3. The Chair Person of the Local Committee of the Kerala Headload Workers Welfare Board sought himself to be impleaded by filing I.A. 9072 of 2009 and that was allowed. According to them, the community hall is being put up in a scheme covered area and the provisions of the Act are applicable. The area falls under Pool No.8 and there are nine registered workers. The claim made by the petitioner is unsustainable both on facts and in law and has been made with the intention to deny employment to the members of the fourth respondent union. They too point out that the petitioner is not entitled to any relief. WPC. 20193/2009. 6 4. The question that arises consideration is whether the claim of the petitioner that he is not bound to engage the headload workers attached to fourth respondent union is sustainable. 5. Most of the facts are not in dispute. It is accepted by all that the community hall is being put up in a scheme covered area. It is to be noticed that the petitioner has produced Exts.P10 and P11, which would show that the work of putting up a community hall has been split up into two parts. In Ext.P10 it can be seen that some of the works have been entrusted to M/s. Paramount Construction Company. Ext.P11 would indicate that the flooring of the community hall has been entrusted to Sakthi tiles (India) Pvt. Ltd.. The work includes the following: i) Marble Slabs unloading. ii) Marble Cutting and Laying iii) Three Times Polishing iv) One Time Waxing Polish WPC. 20193/2009. 7 In the light of Exts.P10 and P11, it is idle for the fourth respondent to contend that the entire construction work was entrusted to M/s. Paramount Construction Company. May be that the fourth respondent union has been able to enter into an agreement with M/s. Paramount Construction Company. That can be in relation to the work entrusted to them and that cannot extend to the work undertaken by Sakthi Tiles (India) Pvt. Ltd. 6. There is also no dispute regarding the fact that the place where the community hall is being put up is covered by the scheme. If the provisions of the Act are applicable, members of the fourth respondent union will have to be engaged for the work. 7. Learned counsel appearing for the petitioner pointed out that the community hall is close to a temple and if that be so, the Act has no application as the temple cannot be treated as an establishment. In support of the said proposition, learned counsel placed reliance on the decision reported in T.M.B.S. v. WPC. 20193/2009. 8 Administrative Officer (1999 (3) K.L.T. 900). Relying on the decision reported in Jayaprkash v. Superintendent of Police (2006(2) K.L.T. 41), learned counsel pointed out that the construction site does not fall within the ambit of an establishment. 8. Considerable reliance was also placed on the decision reported in Venkatraman v. Sub Inspector of Police (2005(4) KLT 365) and it was contended that the work of unloading the marble slabs is only incidental to the other work to be done by the employees of Sakthi Tiles (India) Pvt. Ltd., who were entrusted with the work of laying the floor of the community hall. The said concern has its own employees and under such circumstances the work of unloading being only an incidental one, the members of the fourth respondent union cannot lay any claim to do the unloading. 9. Learned counsel appearing for the respondents then pointed out that no particular skill is required to unload the marble WPC. 20193/2009. 9 slabs and there is no reason as to why work should be denied to the members of the fourth respondent union. In this regard, the fourth respondent received considerable support from the additional fifth respondent also. 10. In the decision reported in T.M.B.S. v. Administrative Officer (1999 (3) K.L.T. 900) the facts indicate that the matter related to putting up of a panthal near a temple. It was held that the contractors and traders engaged for such activities have their own arrangements to unload the articles and put up the panthal. It is also pointed out that the temple is not an establishment falling within the ambit of the Act and therefore the Act was not applicable. 11. Of course, if it is to be held that the community hall is a part of the temple, then ofcourse the principle enunciated by the decision applies. But even the learned Senior Counsel appearing for the petitioner was unable to show that the WPC. 20193/2009. 10 community hall was being put up as a part of the temple. If that be so, no help can be derived from the decision mentioned above. 12. The decision reported in Jayaprkash v. Superintendent of Police (2006(2) K.L.T. 41) may not have much relevance in the context of the present case. That related to agricultural operation. It was held that the Act does not extend to agricultural operations. That decision has not much relevance in the present case. 13. However, the decision reported in Venkatraman v. Sub Inspector of Police (2005(4) KLT 365) may be of considerable help to the petitioner. Following the principle of the said decision, learned Senior Counsel contended that the work of unloading of marble slabs was only an incidental activity, the main activity being the laying of the floor. According to the learned Senior Counsel, there can be no dispute that for laying marble slabs specialised skill is needed and it cannot be done by members WPC. 20193/2009. 11 of the fourth respondent union. It is as part of that work that unloading was done by the workers of Sakthi Tiles (India) Pvt. Ltd. The activity of unloading cannot be treated as an independent one. It is also pointed out that there is no regular unloading of marble slabs and at best there may be one or two more consignments. In the said decision it was held as follows: “The Full Bench in Raghavan's case (1998(2) KLT 732) had considered the issue and had observed as following: “Yet another point raised before us was the case of workers employed in the establishments, who are doing the work of loading and unloading along with other duties. Learned counsel for the petitioners would contend that in such circumstances, the workers cannot be treated as headload workers coming under the definition of that term under the Act. We do not think that this is an issue where an answer in general can be given. It will depend on the facts of each case. If the worker is dong loading and unloading work regularly in WPC. 20193/2009. 12 the establishment, he cannot be taken out of the purview of the Act only for the reason that he is discharging some other duties also. One the other hand, if he is principally employed to carry on the work other than loading and unloading and if occasionally he does the work of loading and unloading, it may not be possible to treat him as a headload worker coming within the definition. But, as mentioned earlier, it will depend on the facts of each case.” We feel that in the above context, the prime enquiry has to be conducted with reference to the definition of headload worker as found in S.2(m) of Headload Workers Act, 1998. A person has to be employed directly or through contractor engaged in or for an establishment, for loading or unloading work, for him to be identified as a headload worker. Therefore, if principally and predominantly a person is not engaged for headload work, he is not a 'headlord worker' as coming under the Act. Other provision of the enactment lends support to such conclusion.” WPC. 20193/2009. 13 14. It is evident from the records produced in the case that Sakthi Tiles (India) Pvt. Ltd., has been engaged to do the flooring of the community hall. Ext.P11 agreement also indicate things to be done by the said concern. The activity of unloading the tiles is one among the above activities for doing the work by the concern. It could not be said that the main work of Sakthi Tiles (India) Pvt. Ltd., in the case on hand is loading and unloading. It forms only a very minor part of the work. So also it is extremely doubtful if the community hall could be called as an establishment falling within the ambit of the Act. 15. Learned counsel appearing for the fourth respondent and additional fifth respondent were unable to show that loading and unloading was the main work that was being carried on in the site and the claim of the petitioner to the contrary is incorrect. WPC. 20193/2009. 14 16. The contention taken by the fourth respondent that there was no cause of action does not appear to be very convincing. The petitioner has already referred to an incident, which occurred in March, 2008, which compelled the petitioner to divert the marble slabs to his house incurring huge additional expenditure. The incident as such is not disputed by the fourth respondent. May be that the petitioner at that point of time did not seek actual police aid. However, there is no reason to disbelieve that the Sakthi Tiles (India) Pvt. Ltd and the petitioner apprehend more trouble from the members of the fourth respondent union as and when future consignment of marble slabs arrive. One has also to note that the marble slabs kept in the house of the petitioner in Palakkad will also have to be brought to the site. In the light of the incident that occurred in March, 2008 and also the attitude of respondents 4 and 5, the apprehension expressed by the petitioner could not be faulted. Petitioner is certainly entitled to take WPC. 20193/2009. 15 precautions. It is for the said reason that the petitioner has approached respondents 1 to 3. Seeing the attitude of respondents 1 to 3, if the petitioner felt that no help will be received from them, certainly the petitioner is justified in approaching this court for necessary reliefs. 17. Learned counsel appearing for the fourth respondent then pointed out that that there are only nine workers attached to the particular pool and there is no reason as to why they should not be given work of unloading the marble slabs. It is pointed out that the members of the union are willing to do the work at a reasonable wage. Learned counsel appearing for additional fifth respondent assured that if the members of the fourth respondent union are engaged and if they create trouble, either in the matter of unloading or in the matter of wages, they will interfere and settle the dispute amicably. Fifth respondent too pleaded that the members of the fourth respondent union be WPC. 20193/2009. 16 engaged for unloading the tiles. 18. Well, if as a matter of fact, the petitioner is inclined to employ the members of the fourth respondent on terms, there can be no objection. But the learned Senior Counsel appearing for the petitioner pointed out that the petitioner was not amenable to such a concession. In the light of the fact that the community hall cannot be treated as an establishment and also the fact that the work of unloading of marble slabs can only forms a very minor part of the main work entrusted to Sakthi Tiles (India) Pvt. Ltd., it cannot be said that the activity concerned fall within the ambit of the act. If that be so, the members of the fourth respondent union has no justification to claim that as a matter of right they should be engaged for unloading marble slabs. It must be remembered that the act of unloading marble slabs will occur only very rarely. The work entrusted to Sakthi Tiles (India) Pvt. Ltd., is for the purpose WPC. 20193/2009. 17 of laying the floor with marbles. There cannot be any doubt regarding the fact that the work of laying marble slabs is a skilled work and needs specialised workers. The main work relates to laying of the floor of the community hall, and unloading the marble slabs is only incidental to the main work. It also needs to be noticed that the consignment consists of marble slabs of specified dimensions. The members of the fourth respondent union have no statutory or any other right to physically obstruct the unloading of marble slabs. In the above facts and circumstances, the petitioner is entitled to reliefs in this petition. The writ petition is disposed of as follows: i) There will be a direction to respondents 1 to 3 to afford police protection to the petitioner and employees of Sakthi Tiles (India) Pvt. Ltd., for unloading the marble slabs, in case the petitioner makes a request in that regard and if any obstruction is caused by the members of the fourth respondent. WPC. 20193/2009. 18 ii) Petitioner will be at liberty to engage the members of the fourth respondent on mutually agreed terms, if the petitioner is willing to do so. P.R. Raman, Judge P. Bhavadasan, Judge sb.