IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 WP(C).No. 10021 of 2009(W) -------------------------- PETITIONER(S): --------------- 1. ANOOP K.A., AGED 30 (THIRTY) YEARS, S/O.ABDUL REHMAN, PROPRIETOR, M/S.KUNNATHUNAD AGENCIES, V.P.VII/8J & BK, P.P.ROAD, VENGOLA P.O., PERUMBAVOOR, KUNNATHUNAD TALUK. 2. ANEESH K.A., AGED 29 (TWENTY NINE)YEARS, S/O.ABDUL REHMAN, KOOLIYADAN HOUSE, ALLAPRA P.O., PERUMBAVOOR, KUNNATHUNAD TALUK. 3. JISSAR M.M., AGED 21 (TWENTY ONE)YEARS, S/O.MOHAMMED, MANGALIPPARA HOUSE, VALAYANCHIRANGARA, PERUMBAVOOR, KUNNATHUNADU TALUK. 4. RATHEESH KUMAR, AGED 26 (TWENTY SIX) YEARS, S/O.RAMACHANDRAN, NEDUVANTHANATHU HOUSE, N.MAZHUVANNOOR P.O., VALAMBOOR, PERUMBAVOOR, KUNNATHUNADU TALUK. BY ADV. SRI.K.SREESAKUMAR SRI.ABHILASH BHASKAR SRI.BINU JOHN SRI.C.M.AMEER ALI RESPONDENT(S): --------------- 1. THE ASST. LABOUR OFFICER, P.P.ROAD, PERUMBAVOOR. 2. DISTRICT LABOUR OFFICER, CIVIL STATION, KAKKANAD, ERNAKULAM. 3. KERALA HEADLOAD WORKERS WELFARE BOARD, LOCAL COMMITTEE, PERUMBAVOOR. 4. HEADLOAD & GENERAL WORKERS UNION (I.N.T.U.C.), REGISTRATION NO.07-22/1991 VENGOLA, PERUMBAVOOR. 5. HEADLOAD & GENERAL WORKERS UNION (C.I.T.U.) REGISTRATION NO.388/1974, VENGOLA, PERUMBAVOOR. G.P. SMT.N.SUDHA DEVI ADV. SRI.SIRAJ KAROLY FOR R4 & R5 SRI.RENIL ANTO KANDAMKULATHY,SC,KHLWWB FOR R3 SRI.KOSHY GEORGE, SC, KHLWWB FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 10021/09. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE RENT DEED. P2. COPY OF THE LICENCE FROM THE PANCHAYAT. P3. COPY OF THE REGISTRATION CERTIFICATE. P4A. P4C. COPY OF THE APPLICATION FOR REGISTRATION OF THE P2 TO P4. P5. COPY OF THE JUDGMENT IN W.P.(C).No. 25707/08. P6. COPY OF THE ORDER OF THE ASSISTANT LABOUR OFFICER P7. COPY OF THE ORDER OF DIST. LABOUR OFFICER DTD.5.1.09. P8. COPY OF THE WAGE SLIP OF P1. P9. COPY OF THE MUSTER ROLL. P10. COPY OF THE WAGE SLIP OF P1. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 10021 of 2009 ================== Dated this the 23rd day of December, 2009 J U D G M E N T The 1st petitioner is a trader in cements. He started his business in Door Nos.VII/8J and 8K of Vengola Grama Panchayat. The premises of the business was taken on rent by the 1st petitioner from one Moosa as per rent deed dated 25.4.2008. He obtained Ext.P2 licence for the business from the Panchayat on 27.5.2008. He started the business by the end of May, 2008. The 1st petitioner wanted to engage permanent headload workers for doing the loading and unloading work in the newly started establishment. He chose petitioners 2 to 4. Petitioners 2 to 4 filed applications dated 16.6.2008 before the 1st respondent for registration under Rule 26A of the Kerala Headload Workers Rules. The said applications are Exts.P4(a) to P4(c). When there was delay in consideration of those applications, the petitioners approached this Court by filing W.P.(C).No.25707/2008, in which, by Ext.P5 judgment dated 26.8.2008, this Court directed the 1st respondent to consider and pass orders on the applications within one month from the date of receipt of a copy of that judgment. Immediately thereafter, on 27.8.2008, the 1st respondent passed Ext.P6 order rejecting the applications on the ground that the 1st petitioner could not prove that petitioners 2 to 4 were employed by him, by producing appropriate w.p.c.10021/09 2 documents and also that the headload works of the 1st petitioner's establishment were being conducted by pool workers of pool No.91 and 92. Against that order, the petitioners filed appeal before the 2nd respondent, who rejected the same, by Ext.P7 order, on the ground that the chairperson of the local committee of the Kerala Headload Workers Welfare Fund Board has given evidence to the effect that the area in question is a scheme covered area and that in the 1st petitioner's establishment, workers of pool Nos.91 and 92 were doing loading and unloading work. The petitioners are challenging Exts.P6 and P7 orders in this writ petition. 2. According to the petitioners, petitioners 2 to 4 are actually working in the establishment of the 1st petitioner, which is evident from Exts.P8 register maintained by the 1st petitioner, Ext.P9 muster rolls and Ext.P10 wage slips for payment of wages to petitioners 2 to 4. The petitioners would, therefore, contend that the finding of respondents 1 and 2 that the 1st petitioner could not prove that petitioners 2 to 4 were employed by the 1st petitioner is not true to facts and therefore, the finding in that regard is clearly perverse. 3. The learned Government Pleader appearing for respondents 1 and 2 supports Exts.P6 and P7 orders on the same reasons as contained therein. The counsel for the 3rd respondent also supports the orders on the ground that the work of the 1st petitioner's w.p.c.10021/09 3 establishment were being carried out by pool workers of pool Nos.91 and 92 of the local committee and, therefore, they are entitled to continue to be employed by the 1st petitioner. 4. I have considered the rival contentions in detail. 5. Rule 26A prescribes only the procedure for registration of headload workers. Rule 26A is contained in Chapter IV of the Kerala Headload Workers Rules, which is prescribed under Chapter IX of the Kerala Headload Workers Act. Chapter IX contains the provisions regarding registration of headload workers, employers and maintenance of records. Section 26 contains the provisions for employment of persons in a new establishment. The said section provides thus: “26. Employment of persons in new establishment.- (1) Notwithstanding anything contained in this Act, when a new establishment or firm has started otherwise than by the change of ownership or name or by shifting of an establishment or firm from one place to another, the employer may employ on a regular basis any person of his choice for carrying out the loading and unloading work in his establishment or firm: Provided that any head load worker employed or engaged for loading or unloading work in or for an establishment or firm shall not be denied his employment in that establishment or firm. (2) Every employer of new establishment or firm as mentioned in sub-section (1) shall furnish the details of head load workers employed by him within 30 days from the date of such employment to the authority or officer referred to in Section 25. (3) No head load worker employed in any establishment who has been in continuous service for not less than one year under an employer or contractor shall be denied employment by that employer until the head load worker has been - w.p.c.10021/09 4 (a) given one month's notice in writing indicating the reasons for denial of employment and the period of notice has expired or the head load worker has been paid in lieu of such notice wages for the period of the notice. (b) paid at the time of denial of employment compensation which shall be equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in excess of six months.” It is not disputed before me that the 1st petitioner started the new establishment by the end of May, 2008. It is also not disputed before me that Exts.P4(a) to P4(c) applications for registration under Rule 26A were submitted by petitioners 2 to 4 on 16.6.2008 for registration as attached headload workers of the petitioner's new establishment. Therefore, clearly Section 26A is attracted to the present case in so far as the 1st petitioner has started a new establishment and he has chosen petitioners 2 to 4 as headload workers to be employed by him on a regular basis. That being so, petitioners 2 to 4, whom the 1st petitioner has chosen as his headload workers on regular basis, are entitled to get registration under Rule 26A. Under Section 25 of the Act, every headload worker shall register his name with such authority or officer in such manner as may be prescribed and shall also register his name as provided in the Scheme, on the commencement of the functional operation of that Scheme. Therefore, only registered workers can work as headload workers in a new establishment. Certainly a new worker would not have registration unless he applied for registration under Rule 26A. In this case, w.p.c.10021/09 5 petitioners 2 to 4 have filed applications as soon as the 1st petitioner started business and selected petitioners 2 to 4 as his regular headload workers. Even assuming that pool workers of pool Nos.91 and 92 have been engaged by the 1st petitioner, that can only be pending registration of his regular workers under Rule 26A. Simply because for some time the 1st petitioner had engaged pool workers of pool Nos.91 and 92 (assuming that to be so), that cannot ipso facto prevent petitioners 2 to 4 from getting registration under Rule 26A as regular workers of the 1st petitioner. Therefore, I am satisfied that Exts.P6 and P7 orders denying registration to petitioners 2 to 4 under Rule 26A is clearly perverse and unsustainable. Accordingly, Exts.P6 and P7 orders are quashed. The 1st respondent is directed to give registration to petitioners 2 to 4 as regular workers of the 1st petitioner as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.10021/09 6