IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 WP(C).No. 37723 of 2010(M) ----------------------------------------- PETITIONER(S): ------------------------- S.S.DISTRIBUTORS, KOTTULLY, KOZHIKODE REPRESENTED BY ITS PROPRIETOR SRI.SREEJITH.A., S/O. VISHWANATHAN, RESIDING AT NEELIKODE.P.O., KOZHIKODE. BY ADV. SRI.A.G.ADITYA SHENOY RESPONDENT(S): --------------------------- 1. THE SUPERINTENDENT OF POLICE,KOZHIKODE DISTRICT-673 001. 2. THE DEPUTY SUPERINTENDENT OF POLICE, KOZHIKODE DISTRICT-673 001. 3. THE COMMISSIONER OF POLICE, KOZHIKODE CITY, KOZHIKODE-673 001. 4. CIRCLE INSPECTOR OF POLICE, MEDICAL COLLEGE.P.O., KOZHIKODE DISTRICT-673 001. 5. SUB INSPECTOR OF POLICE, MEDICAL COLLEGE PLICE STATION, KOZHIKODE DIST-673 001. 6. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO THE GOVT. HOME DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001. kss ..2/- ..2..... WPC.NO.37723/2010 M 7. THE HEAD LOAD WORKERS UNION(CITU) KOTTULLY, B-SECTION, KOZHIKODE REPRESENTED BY ITS SECRETARY-673 001. 8. THE DISTRICT LABOUR OFFICER, KOZHIKODE DISTRICT-673 001. *ADDL.R9 IMPLEADED: R9. THE HEAD LOAD WORKERS WELFARE FUND BOARD, CALICUT, REPRESENTED BY ITS SECRETARY. (*ADDL.R9 IS IMPLEADED AS PER ORDER DTD. 18/02/2011 IN I.A.NO.2785/11 IN WP(C) NO.37723/2010) R1 TO R6 & R8 BY GOVERNMENT PLEADER SMT. C.M. CHARISMA ADDL.R9 BY ADV. SRI.KOSHY GEORGE, SC, KHLWWB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.37723/2010 M APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF PHOTOGRAPHS OF THE SHOPPING COMPLEX AND THE SHOP OF THE PETITIONER HOUSED INSIDE THE COMPLEX. P2: COPY OF THE LICENSE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND SRI. M.RAJAN AND HIS DAUGHTER REGINA.K. DTD. 01/11/2010. P3: COPY OF THE JUDGMENT DTD. 28/02/2004 IN WP(C) NO.6845/2004 M P4: COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 5TH RESPONDENT, DTD. 04/12/2010. P5: COPY OF INVOICE NO.1239 DTD. 11/02/2011. P6: COPY OF INVOICE NO.1356 DTD. 16/02/2011. P7: COPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY THE COMMERCIAL TAX OFFICE, CALICUT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(C) No.37723 of 2010-M ***************************** Dated this the 22nd day of March, 2011 JUDGMENT BASANT, J. Petitioner has come to this Court with this petition seeking issue of directions under Article 226 of the Constitution of India to respondents 1 to 5 – all police officials under the 6th respondent/State, to afford protection to the petitioner against the culpable and violent obstruction of the work in the petitioner's establishment caused by the 7th respondent. 2. According to the petitioner, he runs a small scale proprietary business activity of distribution of mineral water. Packaged mineral water is carried in vehicles and the same is delivered. According to the petitioner, he and the driver of his alone attend to this work. No other employee is employed. The driver is not principally employed in the work of loading and unloading. He is only an incidental employee for such work. The petitioner some time affords assistance to his driver. No one other than the petitioner and his driver do such work of loading W.P(C) No.37723 of 2010-M 2 and unloading. The area in question is admittedly a scheme covered area. The petitioner's driver admittedly has not obtained registration as an attached permanent worker of the petitioner under the Kerala Head Load Workers Act. According to the petitioner, inasmuch as the petitioner is not employing any head load workers and the driver of the petitioner is only doing the work of unloading incidentally, the petitioner is not bound to take registration for such driver as a loading and unloading worker. Consequently the 7th respondent is not entitled to claim that members of the union – registered head load workers, must be engaged by the petitioner, it is submitted. 3. Respondent No.7 has not chosen to enter appearance and resist the claim. Respondent No.9, the Kerala Head Load Workers Welfare Fund Board, was arrayed as an additional respondent. We have heard the learned counsel for the petitioner, the learned Government Pleader and the learned Standing Counsel for the 9th respondent. 4. The learned counsel for the 9th respondent submits that there are incongruent statements in the petition filed by the petitioner and the earlier representation before police about the manner in which the work of loading and unloading is being W.P(C) No.37723 of 2010-M 3 done in the petitioner's establishment. The learned Standing Counsel points out that admittedly the work is carried on in the premises of the petitioner. The petitioner is blowing hot and cold as to who is performing such work. While in some documents he asserts that workmen of the petitioner, at times assisted by the petitioner, are doing the work, in the petition it is asserted that driver is the lone employee and such driver incidentally performs the work of loading and unloading. The learned Standing Counsel for the 9th respondent submits that in this proceedings now before this Court under Article 226, the question whether such driver is performing work incidentally or not, may not be decided. There is an authority prescribed under Section 21 of the Kerala Head Load Workers Act for resolution of such dispute. Such authority may be directed to resolve the dispute. 5. We have considered all the relevant inputs. We take particular note of the fact that the 7th respondent has not entered appearance and resisted the prayer in the petition. We find merit in the submission of the learned Standing Counsel for the 9th respondent that the question whether the work is incidental or not must rightly be resolved by the authorities under Section W.P(C) No.37723 of 2010-M 4 21 of the Act. But in the facts and circumstances of this case, we are satisfied that until such dispute is resolved by the machinery provided under Section 21, appropriate directions can be issued in favour of the petitioner particularly in view of the fact that the 7th respondent has not chosen to appear and resist the prayer for police protection. 6. In the result: a) This Writ Petition is allowed in part; b) Respondents 4 and 5 shall afford protection to the petitioner to get the work of loading and unloading in his premises done by the petitioner (proprietor) himself or the lone driver engaged by him. We make it clear that no other worker shall be employed for such work of loading and unloading; c) Such protection shall be afforded only till such time that the dispute is resolved by the authorities under Section 21 of the Kerala Head Load Workers Act within 3 months from this day; d) Either party may apply before the authority under Section 21 of the Act to get the dispute resolved. Even assuming that either party does not take steps, on the perception of the dispute by the Assistant Labour Officer concerned, he can W.P(C) No.37723 of 2010-M 5 initiate proceedings suo motu under Section 21 of the Act. The 8th respondent, the District Labour Officer, shall ensure that the Assistant Labour Officer initiates the necessary proceedings whether or not he gets complaint from the parties concerned and gets the dispute resolved under scheme provided under Section 21 of the Act as expeditiously as possible - at any rate, within 3 months from this day. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/