IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 WP(C).No. 14856 of 2009(B) ---------------------------------------------- PETITIONER(S): -------------------- M/S.JEMSONS STARCH AND DERIVATIVES, AROOR REPRESENTED BY ITS MANAGING PARTNER STANLY P.JOHN. BY ADV. SRI.C.P.RAVIKUMAR RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CIRCLE INSPECTOR OF POLICE, KUTHIATHOD. 3. THE SUB INSPECTOR OF POLICE, KUTHIATHOD. 4. KERALA HEADLOAD WORKERS WELFARE BOARD, BRANCH OFFICE, AROOR REPRESENTED BY ITS CHAIRMAN. 5. AROOR BLOCK GENERAL WORKERS UNION(INTUC) CONGRESS HOUSE, KUTHIATHODE REPRESENTED BY ITS GENERAL SECRETARY, AZEEZ PAYIKKAD. 6. CHERTHALA TALUK INDUSTRIAL EMPLOYEES UNION (CITU) AROOR REPRESENTED BY ITS GENERAL SECRETARY, C.B.CHANDRABHANU. WP(C).NO.14856/2009 B 7. THE KERALA HEADLOAD WORKERS WELFARE BOARD, CHERTHALA REPRESENTED BY ITS CHAIRMAN. R1 TO R3 BY GOVERNMENT PLEADER SHRI T.K. VIPINDAS. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R5 & R6 SRI.KOSHY GEORGE, SC, KHLWWB FOR R4 & R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C).NO.14856 OF 2009 B PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE REPRESENTATION DATED 25/5/2009 SUBMITTED BEFORE THE 3RD RESPONDENT. EXT.P2 TRUE COPY OF THE REPRESENTATION DATED 25/5/2009 SUBMITTED BEFORE THE 4TH RESPONDENT. EXT.P3 TRUE COPY OF THE REPRESENTATION DATED 26/5/2009 SUBMITTED BEFORE RESPONDENT NO.7. EXT.P4 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE RESPONDENTS. EXT.P5 TRUE COPY OF THE RECEIPT ISSUED BY THE 4TH RESPONDENT DATED 3.6.2009. EXT.P6 TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT DATED 4.6.09. EXT.P6(A) TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT DT. 3.6.09. EXT.P7 TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT DT. 15.6.2009. EXT.P8 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P9 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DT. 25.6.09. RESPONDENTS' EXHIBITS: EXT.R5(A) TRUE COPY OF THE COMPLAINT DATED 9.2.09 BY THE PETITIONERS. EXT.R5(B) TRUE COPY OF THE LETTER DATED 4.6.09 BY 4TH RESPONDENT TO THE PETITIONER. EXT.R5(C) TRUE COPY OF THE DECISION OF THE COMMITTEE DATED 29.5.09. EXT.R5(D) TRUE COPY OF THE LETTER DATED 7.9.04 OF THE HEAD LOAD WORKERS WELFARE BOARD, ERNAKULAM. //True copy// PS to Judge K.M. JOSEPH & M. C. HARI RANI, JJ. ----------------------------------------- W.P.(C).NO. 14856 OF 2009 B ------------------------------------------ Dated this the 1st November, 2010. JUDGMENT K.M. Joseph, J. Petitioner has approached this Court seeking the following reliefs: “i) Issue a writ of mandamus or other writ or order directing respondents 2 & 3 to render adequate police protection to the person and property of the petitioner and their employees in carrying out the loading and unloading operations of goods. ii) Issue further directions to respondents 2 to 4 & 7 to consider and dispose of Exts.P1 to P3 without any delay.” 2. Briefly put, the case of the petitioner is as follows: Petitioner is carrying on business for which raw-material of tapioca starch which comes from outside the State in 90 Kgs. gunny bags. Petitioner is having own workers for loading and WPC.NO.14856/09B 2 unloading work inside and outside the factory. Since the Headload Workers Act is applicable in that area, the petitioner used to employ the headload workers belonging to respondents 5 and 6. Most of the headload workers belonging to respondents 5 and 6 are unhealthy and over-aged and are not able to carry out the loading and unloading activities of the standard packing of 90 Kgs. of tapioca starch and other raw-materials. Therefore, the fourth respondent was requested to allot healthy workers for unloading the 90 Kgs. of tapioca starch coming from outside the State. But, no steps are taken so far and the head load workers allotted are creating problems by insisting that they will not unload the raw- material weighing more than 50 Kgs. They obstruct the petitioner from carrying out the loading and unloading works by the employees of the petitioner. In paragraph 2 of the Writ petition, the petitioner has mentioned the names of the persons the petitioner is having for the purpose of running the factory including the loading and unloading operations. But, respondents WPC.NO.14856/09B 3 5 and 6 are not permitting them to do it. Petitioner has filed representation. Eliciting no response, they are before us. 3. A counter affidavit is filed by respondents 5 and 6. Therein, it is stated that the gunny bags weigh 95 Kgs. It is stated that in other factories including Elite Foods, these items are brought in gunny bags weighing 70 to 75 Kgs. The workers of the respondent Union requested the petitioner to direct the suppliers to send goods in gunny bags weighing 75 Kgs. But, it was not heeded to. 4. A reply affidavit is filed producing Ext.P9 representation submitted before the third respondent by the petitioner. In paragraph 5, it is stated that the claim put-forward by respondents 5 and 6 that it is not possible to carry out the loading and unloading works weighing more than 95 Kgs. cannot be sustained and it is impossible and not viable to establish a separate unit for re-packing the goods into 75 Kgs. 5. We heard the learned counsel for the parties appearing. WPC.NO.14856/09B 4 Learned counsel appearing on behalf of respondents 4 and 7 would bring to our notice the provisions of Section 7 of the Kerala Headload Workers' Act, 1978. It reads as follows: “7. Limitation of Employment.- (1) No headload worker shall be required to carry on his head or person at a time any article or articles weighing more than seventyfive kilograms. (2) Notwithstanding anything contained in this Act, no person who is more than sixty years of age shall be entitled to the benefits conferred on a headload worker under this Act.” 6. It is clear from the provisions of Section 7 that the petitioner cannot be heard to say that the head load workers must carry loads having weight more than 75 Kgs. as, such a contention is palpably contrary to the mandate of Section 7. The Headload Workers Act is also enacted for the benefit of the workers for regulating the hours of work and to see that they are not exploited. If the argument of the petitioner is accepted, it would result in a situation where the headload workers will be compelled to carry WPC.NO.14856/09B 5 loads above 75 Kgs. weight which is the statutory limit fixed by the legislature. Therefore, we have no difficulty in rejecting the contention of the petitioner that the workers can be compelled to do loading and unloading work where the statutory limit is exceeded. There is no dispute that the workers of the petitioner do not have registration. Then, the learned counsel for the petitioner would submit that the petitioner is using mechanical devices for loading and unloading and if the petitioner is using mechanical devices for loading and unloading, it will not be open to respondents 5 and 6 to obstruct the loading and unloading work by using mechanical devices only. There is no pleading however. In such circumstances, we dispose of the Writ Petition as follows: If the petitioner has a case that the petitioner is doing mechanical devices, it is for the petitioner to bring the same to the notice of the Police Authorities. As far as the question of doing the work of loading and unloading involving more than 75 Kgs. is concerned, we hold that the petitioner is not entitled to the relief WPC.NO.14856/09B 6 for police protection to carry out the work of loading and unloading of packets of raw-materials where the weight is more than 75 Kgs. If the packets are below 75 Kgs. and if the workers of respondents 5 and 6 refuse to do the loading and unloading work and if the petitioner does its work, then it is open to the petitioner to do the work of loading and unloading through its own workers, provided the workers are having registration under the Headload Workers' Rules and if obstructed, it is for the petitioner to approach the police for necessary protection. Sd/= K.M. JOSEPH, JUDGE Sd/= M.C. HARI RANI, JUDGE kbk. //True copy// PS to Judge WPC.NO.14856/09B 7