IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 WP(C).No. 30596 of 2010(Y) ---------------------------------- PETITIONER(S): ------------------- M.K.JOHNY, AGED 45 YEARS, S/O.KURIPPU, MANGALY HOUSE, MOOKKANNOOR P.O., ANGAMALY, ERNAKULAM DISTRICT. BY ADVS. SRI.T.A.UNNIKRISHNAN SRI.K.S.PRAVEEN RESPONDENT(S): -------------------- 1. THE STATION HOUSE OFFICER, ANGAMALY POLICE STATION, ANGAMALY, PIN-683 572. 2. P.L.PAULACHAN, S/O.LOUIS, SECRETARY, INTUC, MOOKKANNOOR, MOOKKANNOOR P.O., PIN-683 577. R1 BY GOVT.PLEADER SRI.T.K.VIPINDAS R2 BY ADV. SRI.WILSON URMESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ WP(C).No. 30596/2010(Y) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LICENSE ISSUED BY THE MOOKKANNUR GRAMA PANCHAYATH. P2: COPY OF THE COMPLAINT DATED 24/09/2010 BEFORE THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: R2(a):COPY OF THE MEMORANDUM OF SETTLEMENT DATED 01/04/2010 /TRUE COPY/ P.A. TO JUDGE svs K.M.JOSEPH & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.C.No.30596 of 2010 ---------------------------------------- Dated this the 23rd day of November 2010 J U D G M E N T K.M.JOSEPH,J The petitioner has approached this Court seeking the following reliefs: i) issue a writ of mandamus or such other writ, order or direction, directing the 1st respondent to provide sufficient and meaningful protection to the petitioner and his workers for doing all the works in his saw mill using crane and such other machinery without any threat or obstruction from the respondent 2 and their people to secure the ends of justice. 2. Briefly put, the case of the petitioner is as follows: 3. The petitioner is running a timber Saw Mill. He recently purchased a crane for loading and unloading of timber. It is his case that the 2nd respondent is demanding money for use of the crane by the petitioner. 4. Counter affidavit is filed by the 2nd respondent. He has produced Ext.R2(a) memorandum of settlement. It is stated to be the memorandum of settlement entered into between the W.P.C.No.30596 of 2010 2 Association and the Union. In the counter affidavit, it is inter alia stated as follows. The petitioner has now purchased a crane and the union workers are denied of employment. The loading and unloading works which are being done by the registered head load workers cannot be substituted by machines or own workers of the employer. What cannot be done directly cannot be done indirectly. The attempt of the petitioner is only to deny employment to the existing workers. Reply affidavit is filed by the petitioner wherein it is inter alia stated that Ext.R2(a) agreement is not binding on the petitioner as he is not engaging any worker for doing any head load work in the establishment. The petitioner's case is that it is not a scheme covered area. 5. We have heard the learned counsel for the petitioner, the learned counsel for the 2nd respondent and the learned Government Pleader. The learned counsel for the 2nd respondent reiterates the submissions made in the counter affidavit. He would submit that there is denial of employment and it is a labour dispute and the petitioner cannot make use of the purchased crane and displace the registered workers and get the work done through his own workers for loading and unloading W.P.C.No.30596 of 2010 3 and it is a scheme covered area. There is no dispute that it is a scheme covered area. The learned counsel for the 2nd respondent, however, submits that the members of the 2nd respondent are registered pool workers. Under the Head Load Workers Act, head load workers may be employees of a particular employer or they may be pool workers. In the case of pool workers, employer would be Head Load Workers Board. From time to time, on the basis of requisition by employers in the region, workers are alloted by the Board to those employers. Payments are expected to be made through the Board. The scheme of registration and the Rule also provides for the distinction between employees covered under a particular employer and employees who are working as pool workers. As long as the respondent do not have a case that they are employees of the petitioner, we do not see how we can appreciate the case of the respondent that there is denial of employment. It is settled law that the employer is free to make use of mechanical devices to do loading and unloading work. In a case where the employer has existing workers to do loading and unloading work, it is impermissible for him to displace the W.P.C.No.30596 of 2010 4 existing workers by using mechanical devices unless he proceeds to terminate the services of those employees in the manner known to law. 6. But, in the facts of this case, since the learned counsel for the 2nd respondent does not have a case that the members of the party respondents are employees of the petitioner as such, it may not be open to them to resist the petitioner making use of mechanical devices to carry out loading and unloading work. It may be true that Ext.R2(a) provides for rates. But it may also be true that the petitioner may have made use of their services, as a crane is allegedly purchased only four weeks back. But, even then, we would think that as long as the workers were not employees of the petitioner and were being given employment by the petitioner from time to time as pool workers, it may not be open to the 2nd respondent to prevent the use of mechanical devices as such. 7. In such circumstances, the writ petition is disposed of directing that in case the petitioner complains of any obstruction by the members of the Union of which the 2nd respondent is the Secretary before the 1st respondent, the 1st respondent will look W.P.C.No.30596 of 2010 5 into it and he will give protection to the petitioner for doing works in his Saw Mill using crane without any threat from the 2nd respondent. We however make it clear that in the guise of this judgment, the petitioner cannot do loading and unloading work manually unless he does it through the registered workers. In other words, protection will be granted only for the purpose of doing loading and unloading work through crane. We leave it open to the 2nd respondent to raise any dispute they may have before any statutory authority in which case the statutory authority will be free to proceed to consider the claim. The order in favour of petitioner will be subject to the decision to be taken by the statutory authority. (K.M.JOSEPH, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge W.P.C.No.30596 of 2010 6 W.P.C.No.30596 of 2010 7 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010