IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 WP(C).No. 10623 of 2011(C) -------------------------- PETITIONER(S): --------------- 1. K.P.REJI SECRETARY, HEAD LOAD AND GENERAL WORKERS UNION AITUC, MELUKAVU UNIT, RESIDING AT KARUTHEDATH, MELUKAVU P.O., KOTTAYAM DISTRICT. 2. K.J.PHILIP, SECRETARY, HEAD LOAD AND GENERAL WORKERS' UNION (CITU), MELUKAVU UNIT, RESIDING AT KIZHUMOOLAYIL, MELUKAVU P.O., KOTTAYAM DISTRICT. 3. JOY SKARIYA, SECRETARY, THE HEAD LOAD AND GENERAL WORKERS' UNION INTUC, MELUKAVU UNIT, RESIDING AT KARIMPANAMTHADATHIL, MELUKAVU MATOOM P.O., KOTTAYAM DISTRICT. 4. GEORGE MATHEW SECRETARY, THE HEAD LOAD AND GENERAL WORKER'S UNION KUTUC, MELUKAVU UNIT, RESISING AT KUMMINIYIL, MELUKAVU, MATTOM P.O., KOTTAYAM DISTRICT. BY ADV. SRI.THOMAS ABRAHAM SRI.DIPU.R SMT.MERCIAMMA MATHEW SRI.K.S.HARIDAS SRI.V.RENJITH KUMAR RESPONDENT(S): --------------- 1. REGIONAL JOINT LABOUR COMMISSIONER, ERNAKULAM 682018. 2. DISTRICT LABOUR OFFICER, KOTTAYAM 688001. 3. DEPUTY LABOUR OFFICER, KOTTAYAM 688001. 4. ASSISTANT LABOUR OFFICER, PALA 688632. 5. T.J.GEORGE, SECRETARY, MEENACHIL TALUK HEAD LOAD AND GENERAL WORKERS UNION,MELUKAVU, GRAMA PANCHAYAT UNIT, RESIDING AT THADAMALAYIL HOUSE, MELUKAVU MATTOM P.O., KOTTAYAM DISTRICT 688630. BY GOVT. PLEADER SRI.HANIL KUMAR ADV. SRI.M.D.SASIKUMARAN FOR R5 SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW SRI.DIPU JAMES SMT.K.V.RAMYA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 10623/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE REPORT DATED 13.11.2009 SUBMITTED BY THE ASSISTANT LABOUR OFFICER PALA TO THE DISTRICT LABOUR OFFICER KOTTAYAM EXT.P2 : COPY OF THE ORDER DATED 4.2.2010 PASSED BY DISTRICT LABOUR OFFICER, KOTTAYAM UNDER SECTION 21(4) OF THE HEAD LOAD WORKERS' ACT ALONG WITH THE ANNEXURES EXT.P3 : COPY OF THE JOINT PETITION DATED 30.1.2010 SUBMITTED BY THE PETITIONERS TO THE DISTRICT LABOUR OFFICER KOTTAYAM EXT.P4 : COPY OF THE LETTER DATED 14.2.2010 FROM THE SUB INSPECTOR OF POLICE MELUKAVU UNDER RIGHT TO INFORMATION ACT EXT.P5 : COPY OF THE ORDER IN H.A. NO.3/2010 DATED 1.10.2010 EXT.P6 : COPY OF THE JUDGMENT DATED 20.6.2011 OF THE HON'BLE COURT IN W.P.(C) No. 8899 OF 2011 EXT.P7 : COPY OF THE MEMORANDUM OF APPEAL FILED UNDER SECTION 21(6) OF THE KERALA HEADLOAD WORKER'S ACT RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE vps P.N.RAVINDRAN, J. --------------------------- W.P.(C) No.10623 OF 2011 -------------------------- Dated this the 29th day of August, 2011 J U D G M E N T The petitioners are office bearers of trade unions representing loading and unloading workers of Melukavu Grama Panchayat in Kottayam District. They challenge Ext.P2 order dated 4.2.2010 issued by the District Labour Officer, Kottayam in exercise of the power conferred on him under section 21(4) of the Kerala Headload Workers Act and Ext.P5 order passed by the Regional Joint Labour Commissioner, Ernakulam rejecting the appeal filed by the petitioners from that order. The brief facts of the case are as follows: 2. Twenty six persons claiming to be headload workers filed a complaint before the District Labour Officer, Kottayam on 19.5.2009 contending that though they are entitled to do 13% of the work in Cuttens area in Melukavu Grama Panchayat, they were denied employment after Sri.James Mathew who was the former President of the trade union of which they were members left the political party to which the trade union is affiliated. On receipt of the said complaint, the District Labour Officer sent a WPC No.10623/2011 2 letter dated 23.5.2009 to the Assistant Labour Officer, Pala and called for a report. The Assistant Labour Officer conducted conciliation proceedings and submitted a report dated 17.6.2009 to the effect that the conciliation talks failed. The District Labour Officer thereafter sent letter dated 20.8.2009 to the Assistant Labour Officer, Pala calling for a detailed report as regards the question whether the 26 workers who had given the complaint were doing loading and unloading work as claimed by them. The Assistant Labour Officer did not submit a report immediately. The District Labour Officer therefore sent another letter dated 22.10.2009 to the Assistant Labour Officer calling upon him to submit a report on or before 5.11.2009. The Assistant Labour Officer thereafter conduced an enquiry and submitted Ext.P1 report dated 13.11.2009 to the effect that none of the 26 persons who had claimed employment are doing loading and unloading work in the locality. It is stated that notwithstanding the said report, by Ext.P2 order dated 4.2.2010 the District Labour Officer upheld the claim of the said 26 workers. Aggrieved thereby, the petitioners filed an appeal before the Regional Joint Labour WPC No.10623/2011 3 Commissioner, Ernakulam. By Ext.P5 order passed on 1.10.2010, the Appellate Authority dismissed the appeal. Hence this writ petition challenging Exts.P2 and P5. 3. The main contention raised by the petitioners is that the District Labour Officer and the Regional Joint Labour Commissioner did not advert to Ext.P1 report and that the agreement arrived at between the workers in the presence of the Sub Inspector of Police should not have been relied on. The General Secretary of the trade union representing the 26 workers who moved the District Labour Officer, has filed a counter affidavit justifying Exts.P2 and P5. It is contended that Ext.P1 is a fabricated document, that the findings in it are unreliable and that no reliance can be placed on Ext.P1 to challenge Exts.P2 and P5. Various other contentions including the contention that the challenge to the agreement arrived at in the presence of the Sub Inspector of Police is highly belated are also raised. 4. I heard Sri.Thomas Abraham, learned counsel for the petitioners, Sri.Hanil Kumar, learned Government pleader appearing for respondents 1 to 4 and Sri.George Mathew, learned WPC No.10623/2011 4 counsel appearing for the fifth respondent. I have also perused the files which were made available to me by the learned Government Pleader pursuant to the order passed by this Court on 8.7.2011. The main contention raised in the writ petition and reiterated by the learned counsel for the petitioner during the course of arguments is that the District Labour Officer and the Regional Joint Labour Commissioner have not adverted to Ext.P1 report submitted by the Assistant Labour Officer and therefore the impugned orders are liable to be set aside and the matter remitted to the District Labour Officer for fresh consideration. Per contra, Sri.George Mathew, the learned counsel appearing for the fifth respondent contended that from the observations and findings in pages 4 and 5 of Ext.P2 order it is evident that Ext.P1 report was also considered and therefore the challenge to Ext.P2 on the ground that Ext.P1 report was not considered does not merit acceptance. 5. The files disclose that the report dated 17.6.2009 submitted by the Assistant Labour Officer was only a failure report. The District Labour Officer thereafter sent a letter dated WPC No.10623/2011 5 20.8.2009 to the Assistant Labour Officer, Pala calling for a report as to whether the 26 persons who had submitted the complaint are doing loading and unloading work in the locality. The Assistant Labour Officer did not submit the report for quite sometime. Therefore another letter dated 22.10.2010 was sent calling for a report touching upon that aspect of the matter. Thereafter the Assistant Labour Officer submitted Ext.P1 report dated 13.11.2009 to the effect that none of the 26 persons who have filed the complaint are engaged in doing loading and unloading work. He also reported that many among them are otherwise gainfully employed. The District Labour Officer did not however refer to that report and findings and observations therein when he passed the impugned order evidenced by Ext.P2. Though the failure report dated 17.6.2009 which occurs at pages 5 to 7 of the file (both inclusive) is referred to, in the light of the fact that original of the report dated 13.11.2009 is available in that files, I find no merit or force in the contention of the fifth respondent that Ext.P1 is a fabricated document. That apart, though the District Labour Officer has in internal page 4 of Ext.P2 WPC No.10623/2011 6 referred to the fact that he has examined the report submitted by the Conciliation Officer, the contents of the report dated 13.11.2009 have not been adverted to. Though Ext.P2 order refers to the report submitted by the Assistant Labour Officer namely the Conciliation Officer, the District Labour Officer has not stated that the Conciliation Officer has reported that none of the 26 workers were doing loading and unloading work in the locality or that the conclusions and findings in the report are otherwise not acceptable. In short, there is no material on record to indicate that the District Labour Officer had considered Ext.P1 report dated 13.11.2009 while taking a decision on the dispute raised by the 26 persons who claim to be members of the fifth respondent union. The Regional Joint Labour Commissioner did not also advert to the said report. I am therefore satisfied that the dispute requires to be adjudicated afresh by the District Labour Officer in the light of the materials on record including the report dated 13.11.2009 submitted by the Assistant Labour Officer, Pala at pages 55 to 59 of the files. I accordingly allow the writ petition, set aside Exts.P2 and WPC No.10623/2011 7 P5 and remit the matter back to the District Labour Officer. Having regard to the fact that the dispute has been pending for more than two years, the District Labour Officer shall pass fresh orders in the matter after affording both sides an opportunity of being heard expeditiously and in any event within two months from the date on which either the petitioners or the fifth respondent produces a certified copy of this judgment before him. I make it clear that I have not expressed any opinion as regards the merits of the rival contentions and that the District Labour Officer will be free to take a decision in the matter based on the materials on record. P.N.RAVINDRAN, (JUDGE) vps