IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 WP(C).No. 25100 of 2011(J) -------------------------- PETITIONER(S): --------------- RAJINA, D/O. SIDIQUE, MANNATTIL HOUSE, PUNCHAKKODE, THENKARA, MANNARKKAD, PALAKKAD. BY ADV. SRI.VINOD KUMAR.C RESPONDENT(S): --------------- 1. DEPUTY SUPERINTENDENT OF POLICE, SHORNUR, PALAKKAD. 2. S.I OF POLICE, MANNARKKAD, PALAKKAD. PIN-678001. 3. SECRETARY, INTUC, PUNCHAKKODE UNIT, THENKARA, MANNARKKAD, PALAKKAD-678001. 4. SECRETARY, CITU, PUNCHAKKODE UNIT, THENKARA, MANNARKKAD, PALAKKAD-678001. 5. SECRETARY, STU, PUNCHAKKODE UNIT, THENKARA, MANNARKKAD, PALAKKAD-678001. 6. ADDL.R6- THE KERALA HEADLOAD WORKERS WELFARE BOARD, THE DISTRICT EXECUTIVE OFFICER, PALAKKAD. (ADDL. R6 IS SUO MOTU IMPLEADED AS PER ORDER DTD. 22/09/11) GOVT.PLEADER SMT.K.T.LILLY FOR R1-2 ADV. SRI.KOSHY GEORGE FOR ADDL R6 SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R2,3 &4 SRI.T.C.SURESH MENON FOR R3 &4 SRI.P.S.APPU SRI.A.R.NIMOD FOR R3 &4 SRI.C.A.ANOOP FOR R3 &4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------------------- W.P.(C).No.25100 of 2011 ------------------------------------------- Dated this the 13th day of October, 2011 J U D G M E N T ---------------------- Abdul Rehim, J. Petitioner is the proprietrix of a small scale industry engaged in manufacturing of 'Cement Hollow Bricks', 'Window frames', 'Door frames', etc. According to the petitioner the unit is running after obtaining requisite permits and licences from various authorities concerned, with the assistance of the petitioner's husband, her brother-in-law, and other relatives and by engaging workers of her own. Allegation is that the members of respondents 3 to 5 unions are obstructing the loading and unloading works in the industrial unit. under the guise that they alone have got right to do such works and that they should be engaged for the entire loading and unloading works. 2. According to the petitioner, the loading and unloading works in the unit is being done through the permanent workers engaged for operation of the unit and most of the items required are unloaded only through vehicles having mechanised device for self unloading. Therefore it is contended that the respondents 3 to 5 unions have no manner of right to claim the works. 3. When the writ petition came up for consideration this W.P.(C).25100/11 -2- court impleaded the Kerala Headload Workers Welfare Board represented by its District Executive Officer. Learned standing counsel appearing for additional respondent submitted that the industry is situated in an area where functional operation of the scheme formulated under the Kerala Headload Workers Act has not been implemented. But learned counsel for the contesting respondents raised a contention that even assuming that the unit is situated in a non-scheme area, the employer cannot engage workers who are not registered workers under Rule 26A of the Kerala Head load Workers Rules. The legal position is not remaining 'res integra' in view of the decisions of this court in Raghavan Vs. Superintendent of Police (1998 (2) KLT 732 (F.B.)) and Karunakara Kurup Vs. State of Kerala (2004 (1) KLT 215 (F.B.)). The exact issue raised in this case also stands settled through a recent decision of a Division Bench in, Najumudeen Vs. City Police Commissioner (2011 (3) KLT 268). In the said decision it is held by this court that, notwithstanding the fact that a worker has no registration under Rule 26A, he can work and he can be employed by any employer in any area in which the 1983 scheme has not become functional. Under the above mentioned circumstances we are of the opinion that the petitioners are entitled to do the loading and unloading works by engaging workers on her own choice and respondents 3 to 5 W.P.(C).25100/11 -3- have no manner to interfere with such works. 4. Result of the above discussion is as follows. We dispose of the writ petition directing the 2nd respondent to remove obstructions if any caused to the works conducted by the petitioner in her industry by engaging her own and to afford protection to the smooth functioning of the unit. 5. If there is any excess work, the petitioner shall engage members of respondents 3 to 5 unions having registration under Rule 26A. PIUS C. KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb