IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WP(C).No. 698 of 2009(G) ---------------------------------- PETITIONER(S): --------------------- M/S.SARASONS TRADERS, 5/48B, SAFE COMPOUND, KARUVANTHIRUTHI ROAD FEROKE, KOZHIKODE , REP. BY ITS MANAGING PARTNER PRAKASHAN. BY ADV. SRI.K.P.SUDHEER SRI.T.P.RAMACHANDRAN (THACHETH) RESPONDENT(S): ------------------------- 1. SUPERINTENDENT OF POLICE, MALAPPURAM. 2. S.I. OF POLICE, TIRURANGADI, MALAPPURAM. 3. S.I.OF POLICE, PARAPPANANGADI, MALAPPURAM. 4. SWATHANTHRA THOZHILALI UNION, PARAPPANANGADI, MALAPPURAM DISTRICT, REP. BY ITS GENERAL SECRETARY. 5. THE PARAPPANANGADI MERCHANTS ASSOCIATION, PARAPPANANGADI, MALAPPURAM DISTRICT, BY ITS GENERAL SECRETARY M.V.MOHAMMADALI. ADDL.R6 SWATHANTHRA THOZHILALI UNION, CHEMMAD, MALAPPURAM DISTRICT, REPRESENTED BY ITS GENERAL SECRETARY. W.P.(C).NO.698 OF 2009 G (ADDL.R6 IS IMPLEADED AS PER ORDER DATED 16.1.2009 IN I.A.NO.618/09). R1 TO R3 BY GOVERNMENT PLEADER SHRI T.K. VIPINDAS. ADV. SRI.K.K.MOHAMED RAVUF FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C).NO.698 OF 2009 G PETITIONER'S EXHIBITS: EXT.P1TRUE COPY OF CERTIFICATE OF REGISTRATION DATED 28.5.1994 ISSUED BY SALES TAX AUTHORITIES. EXT.P2TRUE COPY OF AGREEMENT DATED 16.2.2008 ENTERED INTO BETWEEN 5TH AND 4TH RESPONDENTS. EXT.P3TRUE COPY OF COMPLAINT DATED 27.12.2008 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. EXT.P4TRUE COPY OF COMPLAINT DATED 29.12.2008 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P4(A) TRUE COPY OF RECEIPT DATED 29.12.2008 ISSUED BY POSTAL AUTHORITIES. EXT.P5TRUE COPY OF COMPLAINT DATED 27.12.2008 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P5(A) TRUE COPY OF RECEIPT DATED 27.12.2008 ISSUED BY THE THIRD RESPONDENT. RESPONDENTS' EXHIBITS: NIL. // True Copy // PS to Judge K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. -------------------------------------------------- W.P(C). NO.698 OF 2009 G --------------------------------------------------- Dated this the 14th July, 2010 JUDGMENT K.M. Joseph, J. Petitioner has approached this Court seeking the following reliefs: “(a) Issue a writ of mandamus or other appropriate writ, order or direction commanding respondents 2 and 3 to grant necessary protection to the petitioner to do their work and avert the obstruction caused by the 4th respondent. (b) Direct respondents 2 and 3 to consider Exts.P3 and P5 complaints and take appropriate action. (c) Restrain the 4th respondent from causing any obstruction to the petitioner and direct respondents 2 and 3 to render necessary protection as and when requested by the petitioner.” 2. Briefly put, the case of the petitioner is as follows: Petitioner is a Re-Distribution Agent and Stockist of Hindustan Unilever Limited having its Office at Feroke in Kozhikode District. The area of operation of the petitioner is in WPC.698/2009 G 2 two places at Malappuram District, namely Parappanangadi and Chemmad. Petitioner is also re-distributing the products of Hundustan Unilever in Ramanattukara and Feroke in Kozhikode District. Petitioner is having its own vehicle No.KL-11-AC 1714 which is a covered vehicle and small packets are distributed to the retail shops by the petitioner and its salesmen. The grievance of the petitioner is that the fourth respondent is obstructing the salesmen of the petitioner and though it made complaints, no action is taken. It is necessary to extract paragraph 4 of the Writ Petition as under: “4. The petitioner is dealing with re- distribution of consumer articles and no loading and unloading work is involved. The articles are taken from the closed vans to various shops by using sales personnel. It is a part of distribution. Therefore, the 4th respondent cannot obstruct the work of the petitioner. Further, an agreement was also entered into between respondents 4 and 5 with respect to the work. In this regard, the agreement dated 16.2.2008 entered into between the 5th and 4th respondents is produced herewith and marked as WPC.698/2009 G 3 Exhibit P2. Clause 9 of Ext.P2 would clearly show that the 4th respondent cannot obstruct the salesmen coming in sales van. The attempt of the 4th respondent is to pressurise the petitioner by illegal means and have illegal enrichment.” Thereafter, it is alleged that when the fourth respondent obstructed the salesmen, the petitioner filed complaint and the second respondent refused to even accept the petition. Petitioner sent the same by registered post to respondents 1 and 2. The complaints and the receipt are produced as Exts.P3, P4 and P4(a). Petitioner further sent Exts.P5 petition to the third respondent who is the Sub Inspector of Police. 3. A Counter Affidavit is filed by the fourth respondent, wherein, it is, inter alia, stated as follows: The area is a scheme covered area and the members of the respondent Union and other Unions are doing the work of loading and unloading from the pool according to their turn. Though it is a scheme covered area, the petitioner has no case that their employees are registered employees as per the WPC.698/2009 G 4 provisions of the Kerala Headload Workers Act and the Rules. It is stated that under the guise of the interim order to maintain law and order, the petitioner is now obtaining the help of headload workers who are not having registration under the Act and the Rules and they are not issued with Identity Cards to do the work of loading and unloading. Petitioner has also no right to do the loading and unloading work otherwise than those workers who are registered employees under the Act and the Rules and to do the work of loading and unloading in the area. 4. A Reply Affidavit is filed, inter alia, stating as follows: The contention that the petitioner has no registered workers is absolutely incorrect. Petitioner has got two permanent employees and they are having registration also. They are one Nikhil and Aboobakar. It is stated that the petitioner is prepared to produce the Cards if there is any dispute. There were two permanent employees who left service. It is stated that there is no loading and unloading work. The owners place their orders and the petitioner is distributing the WPC.698/2009 G 5 articles like soap, soap powder, talcum powder, shampoo, etc. It is stated that the employees in the van will have to compare the articles with the order form and distribute the same to the shops. For distributing two packets of shampoo and two talcum powder etc., the petitioner cannot employ the members of the fourth respondent Union, especially when the petitioner has two permanent registered employees. 5. We heard the learned counsel for the petitioner, learned counsel for the fourth respondent and also the learned Government Pleader. 6. Learned counsel for the petitioner would submit that though the operations are carried on the area covered by the Scheme, in view of the unrebutted allegations made in paragraph 4 which we have extracted, the party respondents have no right to object. He also referred us to Clause 9 of Ext.P2 Agreement. He would also submit that actually there is only distribution work and there is no headload work being done. He submits that the petitioner has got registered workers at its Office. To WPC.698/2009 G 6 comply with the orders placed, two salesmen accompany the driver in the covered vehicle and when they reach the shops, they have to take the papers, tally the articles to be delivered to the concerned shops and the goods are distributed by the two salesmen. A suggestion is made that the work done by them is of an ancillary nature. Reference is made to the decision of a Full Bench of this Court in Raghavan v. Superintendent of Police (1998(2) KLT 732). Reference is also made to the decision of this Court in Obrin v. Sub Inspector of Police (2005 (3) KLT 861). It is also stated that the allegations in paragraph 4 are not denied. 7. Learned counsel for the fourth respondent would submit that under the guise of interim order passed by this Court which was to maintain law and order, what is being done by the petitioner is that in an area covered by the Scheme, petitioner is doing head load work by utilising not only the two alleged sales persons accompanying the driver in the covered van, but even others have been used in violation of the Headload Workers Act WPC.698/2009 G 7 and the Scheme. He would submit that being essentially a question of law, the loading and unloading work can be done only as per law by registered workers and as the petitioner do not have any registered workers, it cannot do the loading and unloading the work in the guise of distribution. Learned counsel for the fourth respondent brings to our notice the decision of a Division Bench in Cresent Trading Company v. Sub Inspector of Police (2009 (3) KLT 16). On somewhat similar facts, the Court examined the scope of the word “establishment” as defined in the Act and took note of the fact that the registered workers could discharge the duties of loading and unloading work. But, admittedly, the workers of the petitioner (alleged salesmen) are not even registered. 8. There is no pleading as such that the headload work done by the employees of the petitioner is only incidental to the main work. In fact, the case of the petitioner is that there is no loading and unloading work and what is involved is only distribution. Therefore, the petitioner cannot derive any WPC.698/2009 G 8 assistance from the decision in Obrin v. Sub Inspector of Police (2005 (3) KLT 861) and the decision in Raghavan v. Superintendent of Police (1998 (2) KLT 732 (FB)). 9. The further question is whether in view of the allegations in paragraph 4, the petitioner can persuade us to grant relief ? It may be true that there is no specific denial as such. Does that mean that this Court is bound to accept the contention of the petitioner that there is no loading and unloading work being done and mere distribution is being done ? According to the petitioner, there are two sales persons. In view of the allegation in the Reply Affidavit that they are registered workers, we asked the learned counsel for the petitioner whether the said workers are having registration under the Headload Workers Act and the Scheme. Learned counsel fairly stated that they are not registered under the Act or the Scheme. This means that the salesmen accompanying the van are not registered workers. The further question is whether the version of the petitioner that the WPC.698/2009 G 9 petitioner is doing distribution work, and not doing any loading and unloading work and, therefore, the petitioner cannot be obstructed by the fourth respondent, is a plea which can be accepted. The salesmen accompanying the covered vehicle may be having the documents relating to the goods with them. It may even have to tally them with reference to the particular shop they are to be delivered. There is no case however that the goods are being unloaded by using mechanical device. This means necessarily that the goods will have to be carried from the van to the shop. The vehicle could be parked near the shop or far away from the shop. As long as the activity of the salesmen attracts the definition of the word “headload worker” in the Headload Workers Act, we fail to see how it is open to the petitioner to contend that the petitioner can carry on the loading and unloading work through the alleged salesmen, flouting the requirement of the law, in an area covered by the Scheme. It is pertinent to notice that the definition of the word “headload worker” includes a person carrying goods on his head or about WPC.698/2009 G 10 his person. We would think that if the case of the petitioner is to be accepted, it would amount to countenancing a method by which the petitioner can frustrate the very object of the Act. We are unable to accept the case of the petitioner that there is mere distribution and there is no headload work. Petitioner has a case based on Ext.P2 agreement. The fifth respondent is a Merchants Association. The agreement is one executed between the fourth respondent Union and the fifth respondent Merchants Association. Petitioner does not dispute that the petitioner is not a party to Ext.P2 Agreement. There is no dispute either that the petitioner is not a member of the fifth respondent Merchants Association. In such circumstances, we fail to see how the petitioner can derive any assistance from the Agreement. We cannot also overlook the fact that it may not be appropriate also to allow the petitioner to enforce such agreement, if it defeats the law contained in the Headload Workers Act and the Scheme. But, we do not have to go thus far and we rest our decision in regard to Ext.P2 as not being available, in view of the petitioner, WPC.698/2009 G 11 neither being a party to Ext.P2 Agreement, nor being a member of the fifth respondent Association. 10. Learned Government Pleader would submit that the fourth respondent Union would suggest that in respect of packets having a weight more than twenty kilograms, the fourth respondent is insisting on doing the headload work. He further points out that the Act and the Rules do not contemplate any weight based implementation as such. 11. Learned counsel for the fourth respondent would submit that members of the fourth respondent Union will not obstruct the petitioner, if packets having less than ten kilograms weight are alone being distributed by the employees of the petitioner. There is no merit in the Writ Petition and we dismiss the Writ Petition. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk