IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 WP(C).No. 14568 of 2010(U) -------------------------- PETITIONER: -------------------- M/S.HOTEL RAJ INTERNATIONAL,CHENGANNUR, REPRESENTED BY ITS MANAGING PARTNER, P.P.RAJU, AGED 72 YEARS, S/O.LATE P.K.PALPU, RESIDING AT PUNNASSERIL HOUSE, KEEZHECHERIMEL MURI CHENGANNUR. BY ADV. SRI.N.ASHOK KUMAR RESPONDENTS: ------------------------- 1. THE CHAIRMAN,KERALA HEAD LOAD WORKERS WELFARE BOARD, THIRUVANANTHAPURAM. 2. THE CHAIRMAN, KERALA HEAD LOAD WORKERS WELFARE BOARD, ALAPPUZHA DISTRICT COMMITTEE, ALAPPUZHA. 3. STATE OF KERALA REPRESENTED BY THE SECRETARY LABOUR DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.KOSHY GEORGE, SC, KHLWWB FOR R1-R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. SURENDRA MOHAN, J. ------------------------------------------------------------ W.P(C) NO: 14568 OF 2010 U ----------------------------------------------------------- 'CR' Dated this the 5th July, 2010. JUDGMENT The petitioner is a partnership firm conducting a hotel at Chengannur represented by its Managing Partner. According to the petitioner he is conducting a Hotel and Bar in the same premises. He has a number of permanent employees under him working in various capacities as cooks, waiters, cleaning personnel, persons who do the house keeping work and so on. The petitioner's establishment is engaged in conducting a Hotel and Bar that does not require the services of headload workers. Nor does his establishment undertake any loading and unloading work in a regular manner. Occasionally, provisions are brought to his establishment or bottles of liquor are supplied, which are all unloaded by his permanent employees as part of their regular duties. In fact, the petitioner's case is that his permanent employees attend to whatever loading or unloading work that may occasionally arise in his hotel, as part of their normal duties. Therefore, he is not an 'employer' as defined by the Kerala Headload Workers Act, 1978. Nor is the said Act applicable to him or his establishment. WPC 14568/2010 2 2. In spite of the above, the second respondent issued Ext.P1 notice to him under the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 (the 'Scheme' for short) requiring him to register himself as an employer under paragraph 7 thereof. It is also directed that he should seek the services of registered Headload workers under the second respondent for the purpose of attending to the work of loading and unloading in his establishment. The petitioner replied to Ext.P1 by Ext.P2. In Ext.P2, the petitioner explained that there was no employee in his establishment coming within the scope of the authority of the second respondent. He also pointed out that his employees were covered by the provisions of the Kerala Shops and Commercial Establishment Workers Welfare Fund Act and that he was regularly remitting the contributions payable in respect of his employees, under the said Act. Therefore, he requested for all further action in the matter to be dropped. However, the second respondent did not accept the explanation in Ext.P2 but issued Ext.P4 proceedings intimating the petitioner that in all establishments coming within the area of operation of the Scheme, it is the right of the employees registered under paragraph 6A thereof to attend to the loading and unloading work. He has also informed that the omission to get himself registered as directed in Ext.P1 would entail the initiation of WPC 14568/2010 3 prosecution proceedings against him. Therefore he has been issued with a form for registration along with Ext.P4. 3. According to the petitioner the activity of the petitioner is confined to the conduct of a Hotel and Bar where no loading or unloading work arises in the normal course of his business. The marginal loading or unloading work that arises in connection with his activity extends only for a maximum of one hour duration every two or three weeks. The said work is attended to by his permanent workers on a casual basis and forms part of their normal duties. Since the petitioner is not engaging any headload worker in his establishment, he is not an employee under the Act and is not liable to be registered. It is pointed out that as a matter of common knowledge the activity of conducting a hotel and bar does not necessitate attending to headload work. Any such work is rare and occasional, it is submitted. 4. Adv. Koshy George who appears for respondents 1 and 2 has filed a statement contending that the dispute in the present case was a dispute that comes within the scope of the definition of the said term contained in Section 2(h) of the Kerala Headload Workers Act, 1978 (the 'Act' for short). It is also contended that the petitioner is an employer coming within the definition of Section 2(i) of the Act. Since the Act itself has provided a machinery for WPC 14568/2010 4 resolving the disputes that arise under the Act, it is submitted that the petitioner has to resort to the remedy under Section 21 of the Act and that this writ petition is not maintainable. Particular reliance is placed on a Division Bench decision of this Court reported in Sathyan S. v. Sunila Sudhakaran {ILR 1997(1) Kerala 549}. In the said decision, it has been held that writ petitions under Articles 226 & 227 should not be entertained to decide disputes that can be resolved under Section 21 of the Act since, a complete machinery has been provided by the Act for settling such disputes. It is further pointed out that the said view of the Division Bench has been affirmed by the Full Bench in Raghavan v. Superintendent of Police {1998(2) KLT 732 (F.B)} . Since the petitioner does not have any worker in his employment who has been issued with a card as contemplated by Rule 26A of the Kerala Headload Workers Rules, it is contended that the petitioner has to comply with the directions in Exts.P1 and P4. 5. I have heard Mr. N. Asok Kumar who appears for the petitioner, Mr. Koshy George who appears for respondents 1 and 2 and the learned Govt. Pleader who appears for the third respondent. 6. According to the counsel for the petitioner, since he does not employ or engage any headload worker for any work in his WPC 14568/2010 5 establishment, he is not an employer under the Act. Since he is not an employer under the Act, paragraph 7 of the Scheme is not applicable to him and respondents 1 and 2 have no authority to exercise any power under the said provision in relation to his establishment. The petitioner's principal activity is that of conducting a Hotel, a Restaurant and Bar, which do not involve any headload work and as and when provisions are brought to his establishment, they are unloaded and taken away by his own permanent employees who do the said work also as part of their normal duties. Attending to loading and unloading work in such a casual and incidental manner would not make any of his employees headload workers, it is submitted. It is also pointed out by the counsel that the Full Bench in the decision reported in Raghavan v. Superintendent of Police (supra) has over-ruled the decision in ILR 1997(1) Kerala 549 (supra). The counsel for the petitioner relies on two other decisions, Venkatraman v. Sub Inspector of Police [2005(4)KLT 365} and Obrin v. Sub Inspector of Police {2005(3) KLT 861} to substantiate his contention that it is not necessary for him to register his workers under the Kerala Headload Workers Act and the Scheme thereunder. Adv Koshy George on the other hand points out that the decision reported in ILR 1997 (1) Kerala 549 has not been completely over-ruled by the Full Bench but that it has WPC 14568/2010 6 been over-ruled only to the extent it held that even a petition for Police Protection was not maintainable in view of the machinery provided by the Act for adjudication of the disputes under the Act. 7. It is also pointed out that the second respondent being the employer in respect of unattached headload workers, the present dispute between the second respondent and the petitioner would be a 'dispute' under Section 2(h) of the Act. 8. The term 'employer' has been defined in Section 2(i) of the Act as follows:- “i) 'employer' means,- i) in relation to a headload worker engaged by or through a contractor, the principal employer; ii) in relation to a headload worker who is not employed or engaged by any employer or contractor, the Committee appointed under S.18 Explanation: For the purpose of this sub- clause “headload worker” means a person registered as headload worker under the Scheme, and whose wages are paid by the employer or contractor through the Committee concerned. iii) in relation to any other headload worker, the person who has ultimate control over the affairs of the establishment in or for which the headload worker is employed and includes any other person to whom the affairs of such establishment are entrusted, whether such person is called an agent, WPC 14568/2010 7 manager or by any other name prevailing in such establishment” Section 2(m) defines headload worker as follows:- “headload worker” means a person engaged or employed directly or through a contractor in or for an establishment, whether for wages or not, for loading or unloading or carrying on head or person or in a trolly any article or articles in or from or to a vehicle or any place in such establishment, and includes any person not employed by any employer or contractor but engaged in the loading or unloading or carrying on head or person or in a trolly any article or articles for wages, but does not include a person engaged by an individual for domestic purposes; Explanation: For the purpose of this clause, “a person engaged by an individual for domestic purposes” means any person engaged by an individual for loading and unloading of a) any article for construction of a building for his own residential purpose; b) any article in connection with marriage or other family function in his residence or in places where marriage or other family functions are conducted; c) any house-hold articles including furniture in connection with the shifting of a dwelling house of a person; d) any article or articles for carrying out any WPC 14568/2010 8 agricultural operations in his land not exceeding two hectares; e) any articles exclusively for his personal use and not for any industrial or commercial purposes.” Paragraph 7(1) of the Scheme reads as follows:- “7. Registration of Employers (1) Every employer in the area who engages or employs headload workers in or for an establishment for trade or business either directly or through a contractor shall register their names with the Committee along with such details and in the manner as may be specified by the Board within 30 days from the date of commencement of the functional operation of the Scheme in an area or within such further time that may be allowed by the committee not exceeding 45 days.” 9. A reading of the above provisions show that paragraph 7 of the Scheme applies to every employer in the area who engages or employs headload workers in/for an establishment for trade or business. Therefore, an employer who does not engage or employ headload workers cannot come within the scope of paragraph 7 of the Scheme. The petitioner being a person who does not employ or engage a headload worker either directly or through a contractor for his trade or business cannot come within the ambit of paragraph 7. An employer is defined as meaning, in relation to a WPC 14568/2010 9 headload worker or through a contractor, the principal employer and, in relation to a headload worker who is not employed or engaged by any employer or contractor, the committee appointed under Section 18 of the Act. Explanation to Sub Clause (2) of the definition makes it clear that the expression 'headload worker' means a person registered as headload worker under the Scheme and whose wages are paid by the employer or contractor through the committee concerned. Therefore, the headload worker in relation to whom a person would become an employer under the Act has to be a registered headload worker. Consequently, only a person who employs or engages a registered headload worker would come within the scope of the definition of employer contained in the Act. The definition of a headload worker makes it clear that a headload worker is a person who is engaged or employed directly or through a contractor in/for an establishment whether for wages or not for loading or unloading or carrying on head or person or in a trolly any articles or articles in/from or to a vehicle or any place in such establishment and includes persons employed or engaged by any employer or through a contractor provided he is engaged in loading or unloading work. The definition makes it clear that the headload worker contemplated is a person who attends to headload work alone and that the same WPC 14568/2010 10 does not refer to a general worker who attends to headload work also in the course of other duties and responsibilities. The above position has been recognised by the Full Bench in 1998(2)KLT 732 (FB) (supra). The Bench has dealt with the aspect in paragraph 21 in the following words:- “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 could 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 doing loading and unloading work regularly in 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. On 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 with the definition. But, as mentioned earlier, it will depend on the facts of each case.” 10. The Full Bench has gone on to consider whether the WPC 14568/2010 11 machinery provided by the Act should be resorted to even for settling th issue whether a particular worker is a headload worker or not, even when such disputes give rise to a law and order problem. In paragraph 22 this Court has observed as follows:- “When such an employer approaches this Court under Art.226 of the Constitution seeking protection of person and property of the employer as well as willing workers, this Court will be justified in granting direction to the police to give protection, if circumstances so warrant. One such consideration can be irreparable injury that would be suffered by the employer and/or the willing workers. There may be other circumstances also which would justify grant of such direction in the facts of particular case.” Therefore, it is not an absolute rule that an employer who disputes his liability under the Act should take recourse to the remedy under Section 21 of the Act. 11. In the decision reported in Obrin v. Sub Inspector of Police (supra) the question was whether the work of loading and unloading in an industrial unit which is only incidental to the main work could be got attended to by the permanent workers of the establishment who were not headload workers. Placing reliance on the very same observations of the Full Bench quoted above, a WPC 14568/2010 12 Division Bench of this Court has held that permanent workers of an establishment who attend to headload work only incidentally are not workers coming within the definition of 'headload worker' under the Act. The Division Bench has summed up the position in the following words in paragraph 5 of the said decision:- “Thus in a case as the present, where loading and unloading work is only incidental to the main work of the industrial unit, the worker attached to the employer doing such loading and unloading work is not a headload worker and, therefore the 1978 Act or the Rules or the Scheme do not apply to such worker. If so, the employer is not bound to engage a headload worker, much less, a registered headload worker of the 2nd respondent Union, for doing the loading and unloading work in the establishment where loading and unloading work is incidental to the main work. In other words, the 2nd respondent cannot put forward any right to engage its workers for the loading and unloading operations in the petitioner's unit.” Accordingly this Court has held that the work of loading and unloading in an industrial unit, that is ancillary or incidental to the main work of the permanent workers employed by the unit can be attended to by them, though they are not headload workers under the Act. WPC 14568/2010 13 12. While considering a similar issue, another Division Bench of this Court has held in Venkatraman v. Sub Inspector of Police (supra) that a person who may casually attend to loading and unloading work in an establishment is not a headload worker under the Act. The Division Bench has quoted with approval the judgment in Obrin v. Sub Inspector of Police (supra) and has held that, the Act does not mandate that every work of loading and unloading should be attended to only by registered headload workers. After referring to the object of the enactment and the various provisions contained therein, M.Ramachandran, J has made the following observations:- “The unorganised sector of employees was being extended a protection, by providing for regularity of work. It did not intend to snatch away a portion of work from regular workmen and in fact dealt hardly with any issues in respect of such group. In all appearances it does not intend to cover engagement of casual nature, and it is not as if every activity of loading/unloading in the scheme notified areas should be carried out by workers included in the scheme. We are however compelled to observe that precision in the prescription is not a quality claimable by this special statute. It is a bagful of provisions, without bearing in mind the workability of the bundled ideas.” WPC 14568/2010 14 On the basis of the above observation, the Division Bench has concluded the issue in the following words:- “The cumulative circumstances, therefore, compel us to come to a conclusion that the demand for grant of work as coming from respondents 4 to 6 has no legal basis. The petitioner will have the right to carry on the work, including unloading work, by engaging his own workmen. Neither the employer, nor the employees are obliged to register themselves under the Act, Rules or Scheme. In case obstructions come from third persons, the police shall render adequate assistance as the circumstances may require.” Therefore, neither the employer nor the employees are entitled to register their names where the work of the establishment is of a casual nature or incidental or ancillary to the main work. From the wording of paragraph 7 of the Scheme quoted above, it is clear that the said provision also applies only to an “employer who engages or employs headload workers.” The petitioner being not an employer under the Act, the above provision has no application to him or to his establishment. Therefore, Exts.P1 and P4 are without jurisdiction and are liable to be set aside. 13. For the foregoing reasons this writ petition is allowed. Exts.P1 and P4 are quashed. All further proceedings of the WPC 14568/2010 15 respondents based on or pursuant to Exts.P1 and P4 to make the provisions of the Kerala Headload Workers Act, 1978 and the Scheme thereunder applicable to the petitioner's establishment are also held to be unsustainable. No costs. K. SURENDRA MOHAN Judge jj WPC 14568/2010 16