IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 OP.No. 28686 of 1999(M) ---------------------------------- PETITIONERS: --------------------- 1. KANOOR GENERAL WORKERS UNION(CITU), ANGAMALY, REPRESENTED BY K.K. PONNAPPAN, JOINT SECRETARY. 2. KANOOR CASUAL WORKERS UNION(INTUC), ANGAMALY, REPRESENTED BY P.J. BENNY, UNION LEADER. 3. KANOOR HEAD LOAD AND GENERAL WORKERS UNION(INTUC), ANGAMALY, REPRESENTED BY K.T. RAJAPPA, UNION LEADER. BY ADVS. MR.P.RAMAKRISHNAN, MR.T.C.KRISHNA. RESPONDENTS: ------------------------ 1. REGIONAL JOINT LABOUR COMMISSIONER, CIVIL STATION, KAKKANAD, ERNAKULAM. 2. DISTRICT LABOUR OFFICER, CIVIL STATION, KAKKANAD, ERNAKULAM. 3. KANOOR FLAVOURS AND EXTRACTS LIMITED, ANGAMALY SOUTH.P.O., ERNAKULAM DISTRICT, REPRESENTED BY ITS ASSISTANT MANAGER, (INDUSTRIAL RELATES). R1 & R2 BY GOVT. PLEADER MR. V. TEK CHAND, R3 BY ADV. MR.JOSEPH KODIANTHARA.S.C. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 28686/1999-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPLICATION FILED BY THE PETITIONERS TO THE R.2. DTD. 02/01/1997. EXT.P.2: COPY OF THE ORDER OF THE R.2. DTD. 15/01/1997. EXT.P.3: COPY OF THE APPEAL DTD. 10/03/1997. EXT.P.4: COPY OF THE OBJECTION DTD. 16/12/1997. EXT.P.5: COPY OF THE ORDER DTD. 07/01/1999. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. V.K.MOHANAN, J. ---------------------------------------- O.P. No.28686 OF 1999 ---------------------------------------- Dated, 9th day of June, 2009 JUDGMENT Three unions, representing the workers of the 3rd respondent establishment, are the petitioners in this writ petition in which they challenged Ext.P2 order of the 2nd respondent and Ext.P5 order of the Ist respondent. 2. The case of the petitioners unions is that their members are casual employees employed in the 3rd respondent establishment and they are carrying out the headload as well as other production based general work. From the very inception of the factory, the workers were engaged in this nature of work and the regularisation of such workers was a long pending issue, but was not finally settled. According to the petitioners, the service conditions and wages of the workers were fixed through agreements entered into between the petitioners and the 3rd respondent management. Thus, the last agreement was entered O.P.No.28686/99 -:2:- during the year 1993 which was for three years and by 1996 the period of the said agreement was over. Therefore, the unions raised certain demands before the 3rd respondent, including revision of wages and also for regularisation of the workers. It is the specific case of the petitioners that, in order to defeat the above demand, the 3rd respondent employer filed a complaint before the 2nd respondent, who is the authority designated under the Kerala Head Load Workers Act, for settling the dispute. Against the complaint filed by the 3rd respondent, the unions preferred Ext.P1 objection along with which they have produced certain documents also. In the objection, a specific contention was raised before the 2nd respondent regarding the maintainability of the complaint and the dispute raised by the 3rd respondent management. According to the petitioners, the workers engaged by the 3rd respondent are not coming under the purview of Head Load Workers Act and therefore, the 2nd respondent has no jurisdiction to entertain such complaint and O.P.No.28686/99 -:3:- dispute. But by Ext.P2 order, the 2nd respondent accepted the contention raised by the 3rd respondent and ordered revision or wages under the guise that the workers who are the members of the unions will come under the purview of the Head Load Workers Act and they are not the workers of the establishment 3. Aggrieved by Ext.P2 order issued by the 2nd respondent, the unions preferred Ext.P3 appeal before the Ist respondent. Challenging the order of the 2nd respondent, to the extent it revised the wages, 3rd respondent has also preferred appeal before the Ist respondent. Thus, the Ist respondent finally passed Ext.P5 order by which the finding arrived on by the 2nd respondent was confirmed and the appeal was dismissed. It is the above Ext.P5 order, which is the appellate order and, Ext.P2, the original order passed by the 2nd respondent, are challenged by the unions in this writ petition. 4. I have heard the learned counsel for the O.P.No.28686/99 -:4:- petitioners as well as the 3rd respondent and also the learned Government Pleader. 5. The learned counsel for the petitioners submitted that both the second and first respondents miserably failed to conduct an enquiry regarding the issue raised by the unions as to whether the workers are coming under the purview of the industrial dispute Act or under the purview of the Head Load Workers Act. It is submitted that neither in Ext.P2 nor in Ext.P5, there is no discussion regarding those aspects. It is also the case of the counsel that the materials produced by the unions were not properly evaluated and therefore, the conclusion arrived on the respondents 2 and 1 is wrong. It is pointed out that the members of the unions were working under the 3rd respondent for the last 20 years and this fact is not disputed and the wages of the workers and other service conditions are being settled through negotiations. It is the case of the counsel for the petitioners that Ext.P2 proceedings was initiated by the 3rd respondent by O.P.No.28686/99 -:5:- approaching the 2nd respondent with oblique motive to divert the real issue so as to deny the genuine demand of the workers for regularisation of their service. Thus according to the learned counsel, both the first and second respondents miserably failed to consider the above issue and, as disclosed by Exts.P2 and P5, there is no discussion regarding those issues and no specific finding is arrived. Therefore, Exts.P2 and P5 are liable to be set aside, submits the learned counsel for the petitioners. 6. On the other hand, the learned counsel for the 3rd respondent strenuously argued that there is specific finding in Exts.P2 and P5 orders to the effect that the workers are being supplied by the unions and the establishment had no control over such workers and therefore the dispute purely attracts the provisions of the Kerala Headload Workers Act and not otherwise as contended by the counsel for the petitioners. It is further submitted that the service conditions were periodically renewed through negotiations and not as decided by the O.P.No.28686/99 -:6:- management. It is also pointed out that on the basis of Exts.P2 and P5, the monetary benefits were also given to the workers and therefore, nothing remains to be decided. 7. I have carefully considered the contentions raised by both the counsels and also the learned Government Pleader and also perused the materials available on record. 8. It is beyond dispute that the members of the unions are engaged by the 3rd respondent. Regarding the materials mentioned in Ext.P1 objection, and also Ext.P3, there is no dispute and not effectively controverted. It is also beyond dispute that the service conditions of those workers and their wages are being fixed through negotiations from time to time. According to the petitioners, the agreement so entered during the year 1993 had expired during the year 1996 and therefore, new demands were raised by the unions including the demand for regularization of the workers. It is pointed out that the members of the Unions have got no membership O.P.No.28686/99 -:7:- under the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 and they are not the beneficiaries of the said scheme, which established under the provisions of the Act. As indicated in the name of the petitioners, the petitioners unions are not the association of workers generally engaged in loading and unloading in a particular area. All the unions are representative of the casual and headload workers of the 3rd respondent establishment. Therefore, it can be seen that the unions are representing the workers of the 3rd respondent alone. The above fact has to be appreciated in the light of the averments and claim of the unions that for the last 20 years, the workers are engaged under the 3rd respondent and also they are not having any identity card under the said Act and Rules and they are also not the beneficiaries of the Scheme mentioned above. 9. Exts.P2 and P5 initially arose out of a complaint at the instance of the 3rd respondent and, subsequently, upon the appeal preferred by the petitioners as well as O.P.No.28686/99 -:8:- the 3rd respondent. The main question raised by the Unions before the 2nd respondent is that the workers represented by them are not head load workers so as to attract the provisions of the Kerala Head Load Workers Act. According to the petitioners, the said petition itself was filed by the 3rd respondent to divert the issue regarding the demand of the unions and workers for the regularization of the workers and to keep away the issue from the purview of the Industrial Disputes Act. As evidenced by Ext.P1 and as referred in Ext.P2, certain documents were produced by the petitioners to substantiate the above contention. But there is no discussion regarding those materials and no other evidence is seen called for. There is no discussion regarding the points so raised and there is no specific finding also. The demand of the Unions for the regularisation of the workers has to be considered in the light of the above materials or the materials to be adduced by the Unions or 3rd respondent management. It is also O.P.No.28686/99 -:9:- relevant in this juncture that the workers engaged by the 3rd respondent is not only for the loading and unloading purpose but also for the allied or incidental works connected with the production of the establishment. This aspects were not seen considered by the respondents 2 and 1. Therefore, I am of the view that the question raised by the Unions has to be reconsidered by the 2nd respondent and the petitioner as well as the 3rd respondent can adduce evidence and materials to substantiate their contention and also to enable the 2nd respondent to come into a correct finding and to decide the issue. 10. In the result, Exts.P2 and P5 are quashed. 2nd respondent is directed to reconsider the issue and take a fresh decision after giving an opportunity of being heard to the petitioners Unions as well as the 3rd respondent and also an opportunity for adducing evidence, if so advised, to substantiate their respective contentions. The learned counsel for the 3rd respondent submitted that revised O.P.No.28686/99 -:10:- wages have already been given to the workers on the basis of Exts.P2 and P5. After reconsidering the issue as aforesaid, it is open to the 2nd respondent to take a decision regarding wages already disbursed on the basis of the outcome of reconsideration of the issue. The writ petition is disposed of as above. V.K.MOHANAN, JUDGE kvm/- O.P.No.28686/99 -:11:- V.K.MOHANAN, J. O.P.No. 28686 of 1999 JUDGMENT Dated:.9.6.2009.