IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM FRIDAY, THE 14TH DAY OF OCTOBER 2011/22ND ASWINA 1933 WP(C).No. 24908 of 2011 (K) --------------------------- PETITIONER(S): ------------------------ M.U.IBRAHIM, MOOKKADA HOUSE, THANDAKKAD,AUTHORIZED PARCEL SERVICE AGENT,KERALA ROADWAYAS PVT LTD(KRS),PERUMBAVOOR. BY ADV. SRI.M.M.SAIDU MUHAMMED RESPONDENT(S): ----------------------------- 1. THE DEPUTY SUPERINTENDENT OF POLICE, PERUMBAVOOR, PIN-683 542. 2. THE CIRCLE INSPECTOR OF POLICE, PERUMBAVOOR, PIN-683 542. 3. THE SUB INSPECTOR OF POLICE, PERUMBAVOOR,PIN-683 542. 4. C.B.MUHAMMED, S/O.BEERAN, CHENTHARA HOUSE, PARAPPURAM, PERUMBAVOOR PIN-683 542. 5. K.V.SUMAN, S/O.VEERANKUTTY, KUMBASSERY HOUSE, SOUTH VALLOM, ROYANPURAM P.O. PERUMBAVOOR,PIN-683543 6. LATHEEF, S/O.MUHAMMED, AARIYATTIL HOUSE, SOUTH VALLOM, ROYANPURAM P.O. PERUMBAVOOR,PIN-683 543(MEMER/REPRESENTATIVE OF POOL NO.7 OF PERUMBAVOOR LOCAL COMMITTEE) *ADDL.R7 IMPLEADED: R7. THE HEADLOAD WORKERS WELFARE BOARD, LOCAL COMMITTEE, PERUMBAVOOR. (*ADDL.R7 IS SUO-MOTU IMPLEADED AS PER ORDER DTD. 20/09/2011) R1 TO R3 BY GOVERNMENT PLEADER SMT. K.T.LILLY R4 BY ADV. SRI.RAJESH VIJAYAN R5 BY ADVS.SRI.C.S.AJITH PRAKASH SRI.T.D.SALIM SRI.PAUL C THOMAS R6 BY ADV. SRI.MAJNU KOMATH ADDL.R7 BY ADV. SRI.KOSHY GEORGE, SC, KHLWWB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-10-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.24908/2011 K APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF REQUEST DTD. 12/09/2011 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. P2: COPY OF REQUEST DTD. 12/09/2011 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P3: COPY OF REQUEST DTD. 12/09/2011 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS & ANNEXURES: R5(A): COPY OF THE 26A CARD ISSUED TO THIS RESPONDENT. R5(B): COPY OF THE REQUEST SUBMITTED BY THE REGISTERED HEADLOAD WORKERS. R6(A),R6(B),R6(C), R6(D),R6(E),R6(F),R6(G); COPIES OF THE I.D.CARDS ISSUED BY THE PERUMBAVOOR LOCAL COMMITTEE OF THE KERALA HEAD LOAD WORKERS WELFARE BOARD TO THE 6TH RESPONDENT AND THE 6 OTHERS OF THE POOL NO.7. ANNEX.7A: COPY OF LETTER DTD. 11/10/2011. /TRUE COPY/ P.S.TO JUDGE Kss PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- WP(C). No. 24908 of 2011 ----------------------------------------------- Dated this the 14th day of October, 2011 J U D G M E N T Pius C.Kuriakose, J. The petitioner who has been running a Parcel Service Agency of Kerala Roadways Pvt.Ltd. (KRS) at Perumbavoor since 2005 has filed this writ petition under Article 226 seeking a direction to respondents 1 to 3 (the Deputy Superintendent of Police, the Circle Inspector of Police, and the Sub Inspector of Police, Perumbavoor ) to afford police protection to the petitioner to do all works in his establishment, viz., Parcel Service Agency of Kerala Roadways Ltd. (KRS) in door No. 17/699 of Perumbavoor Municipality including loading and unloading by engaging his permanent workers and workers of his choice without any obstruction from respondents 4 to 6, their associates and others. According to the petitioner since 2005 he was conducting parcel service agency of Kerala Roadways Pvt. Ltd. in a rented building on the side of Aluva - Munnar Road WP(C). 24908/11 -2- near Palakkattuthazham Bridge. According to him, most of the consignments which are in small or medium packages will be loaded and unloaded by the staff in the office of the petitioner along with persons accompanying the parcel lorries. But when heavy consignments are brought to the agency, service of head load workers from Pool No. 7 of Perumbavoor Local Committee was being availed. It is submitted that head load workers of Pool No. 7 are not affiliated to any political parties. The petitioner submits that while facts stood as above, the petitioner's tenancy over the rented building was terminated by the landlord and the petitioner had to give vacant possession of that building by 31-8-2011. Therefore the petitioner took on rent another building having door No. 17/699 of Perumbavoor Municipality more than 500 metres away from the present location. As part of shifting of the business to the new premises a consignment directed from the transshipment centre was brought to the new premises on 22-8-2011. When the vehicle arrived in the new premises certain WP(C). 24908/11 -3- persons claiming to be head load workers under the leadership of the 4th respondent (one C.B.Muhammed s/o Beeran) came to the spot demanding to engage them for unloading the consignment. While so, another set of persons under the leadership of the 5th respondent (a person by name K.V. Usman, s/o Veerankutty) also came to the spot raising the very same demand. The petitioner was informed that both these groups belonged to the very same union, Head Load and General Workers Union, INTUC and it is understood that there is fractional dispute between them regarding their area of work. Within that time a set of workers attached to Pool No.7 of Perumbavoor Local Committee under the leadership of the 6th respondent also came to the spot demanding their engagement. 2. As the dispute between the unions was not settled between themselves despite lapse of several hours the lorry had to be returned to the earlier premises and the parcels were got unloaded there. Thereafter, two loads were also attempted to be unloaded in the new premises on two WP(C). 24908/11 -4- occasions which were also obstructed in view of the dispute between the aforesaid head load workers. The present situation is that no head load workers can be engaged for unloading in the new premises in view of the dispute between the three sets of workers. The petitioner is unable to engage his own workers in view of the concerted objections raised by these unions/union fractions. Hence the present writ petition seeking police protection directions. 3. Ext.P1 is the representation submitted by the petitioner to the first respondent Deputy Superintendent of Police, Perumbavoor. Ext.P2 is copy of the representation submitted by the petitioner to the 2nd respondent Circle Inspector of Police. Ext.P3 is the representation submitted by the petitioner to the 3rd respondent. The petitioner complains that in spite of Exts.P1 to P3 the police have not taken any action. 4. The 6th respondent has filed counter affidavit. According to the counter affidavit the entire consignments brought to the Parcel Service Agency of the petitioner are WP(C). 24908/11 -5- being unloaded by the 6th respondent and other 6 head load workers, viz., (1) Aboobacker, (2) Ummer, (3) Abdul Rahman (4) Kochunni Pilla, (5) Basheer and (6) Pareeth of Pool No.7 of Perumbavoor Local Committee of the Kerala Head Load Workers Welfare Board. True copies of the I.D. Cards issued by the Perumbavoor Local Committee of the Kerala Head Load Workers Welfare Board to these seven workers are produced as Exts.R6(A) to R6(G) respectively. It is contended that it is only the 6th respondent and the six head load workers who are being engaged in the loading and unloading work of KRS, Perumbavoor for nearly more than a decade. According to the counter affidavit even before the petitioner became the authorised parcel service agent of KRS in Perumbavoor, loading and unloading work of KRS, Perumbavoor was being done by the 6th respondent and the other six head load workers. Throughout the working hours of the parcel service agency, it is only these seven persons who are doing the work and they are available to do the work. The counter affidavit denies the WP(C). 24908/11 -6- averments in the writ petition regarding the tenancy arrangement over the premises of the agency. According to the counter affidavit the very shifting of the premises has been made with an ulterior motive to try to avoid the 6th respondent and the other six workers who are members of Pool No.7 from being engaged in the loading and unloading work of the parcel service agency. It is pointed out that the shifted premises is very near to the existing premises. Both the premises come within the scheme covered area. Even the new premises fall within the Perumbavoor Municipal area and hence covered by the scheme. According to the counter affidavit none other than the 6th respondent and the other six workers have registered under the Head Load Workers Welfare Scheme and are possessing identity cards are entitled to be engaged by the petitioner. It is submitted that there is no Pool in Parapuram area where the new building is situated and hence the petitioner is bound to engage the 6th respondent and the other six workers as they are holding identity card issued by the Perumbavoor WP(C). 24908/11 -7- Local Committee of the Kerala Head Load Workers Welfare Board. It is pointed out that the practice prevailing in the scheme covered areas under the Kerala Head Load Workers Welfare Board is that if there is no pool in a scheme covered area and if any establishment required head load workers for their loading and unloading work, the required workers from the nearby pools will be provided. In this connection they point out that the Kerala State Beverages Corporation which decided to start a new Warehouse in Ward No. 11 of Vengola Panchayat which is a scheme covered area, having a pool under the Perumbavoor Local Committee of the Kerala Head Load Workers Welfare Board was directed by the local committee to engage workers from the nearby pool if the number of workers available in the local pool are insufficient. It is also pointed out that under no circumstance persons like respondents 4 and 5 who have card under rule 26A(3) alone will be engaged. 5. The 4th respondent has filed a separate counter affidavit. It is pointed out therein that the 4th respondent WP(C). 24908/11 -8- and other 17 persons are working in the area of Parapuram for the last 20 years without any objection from the other respondents in the writ petition. The application for registration under the Kerala Head Load Workers Rules 1981 was preferred by the members of the 4th respondent's union and seven persons were allotted identity cards from the Labour Department and the other applications are pending consideration by the Labour Department. Controversy has been unnecessarily raked up by respondents 5 and 6. The petitioner has been engaging 4th respondent and 17 persons under the 4th respondent for loading and unloading works in KRS Parcel Service. It is then pointed out that the workers working under 6th respondent are head load workers working in Pool No. 7 whose area of work is Palakattuthazham. The workers included in Pool No. 7 cannot work outside Pool No. 7. This aspect is clear from the identity cards issued to them. The petitioner has never employed any worker from Pool No. 7 till today. True copy of the identity cards issued to WP(C). 24908/11 -9- members of Parapuram area are produced as Exts. R4(A) to R4(G). It is then contended that the 5th respondent and the group under him are working in Vallam area. It is pointed out that when a dispute arose between Parapuram workers and Vallam Workers a settlement was arrived and there was an oral agreement between these two groups and the boundary of area of work was fixed as a pond situated on the side of Parapuram -Kariallipadi route. Workers from Vallam area were working upto this pond and workers from Parapuram area were working beyond this pond. This settlement was accepted by both the groups and was continuing for the past 15 years. There was no objection from the side of the Vallam group to the continuance of this arrangement. The petitioner's new establishment is situated at Parapuram Junction. The 4th respondent and 18 persons have been working here for the last 20 years. It is then contended that members of the Vallam group have joined the Construction Workers Welfare Fund and is paying contribution to that welfare fund also. It is contended that WP(C). 24908/11 -10- dual membership in the Kerala Head Load Workers Welfare Board and the Construction Workers Welfare Fund is not permissible under law. 6. The 5th respondent has filed a counter affidavit. It is contended therein that the 5th respondent is a registered worker who is issued with a card under Rule 26A. The working area as per the card which is marked as Ext.R5(a) is Parapuram to Kariyalippadi of Perumbavoor Desom. The 5th respondent is member of a responsible trade union of Head Load Workers which is affiliated to INTUC. In the area there are about 11 head load workers who are issued with Rule 26A cards. Hence the 5th respondent has every right to claim employment in the area. The 5th respondent therefore cannot be treated as a stranger to the dispute. Parapuram is an under developed locality and there is no sufficient work available at present. Therefore the 5th respondent and his fellow workers are finding it difficult to sustain themselves. The area of work allotted to the 5th respondent is a scheme notified area. However, the WP(C). 24908/11 -11- practical implementation of the scheme is not fully started probably because of the lack of work. Very recently new establishments are coming to the area. Hence regular loading and unloading activities are required. Hence the 5th respondent and nine others have applied to the Head Load Workers Welfare Board with a request to register their names and prayed that Rule 26A card be issued to them under the scheme. Ext.R5(d) is copy of the above request. Therefore the 5th respondent and all the 10 workers who are registered under Ext.R5(a) are legally entitled to do head load work in the locality where the petitioner is starting his parcel service. The counter affidavit denies the claims and contentions raised by other co-respondents. It is then contended that the police has no role in interfering with the alleged dispute as it is the Head Load Workers Act and the Rules which governs the field. The attempt of the petitioner in getting police protection is anticipatory nature. There is no threat or obstruction pleaded in the writ petition. 7. Sri. Koshy George, standing counsel for the WP(C). 24908/11 -12- additional 7th respondent (The Head Load Workers Welfare Board Local Committee, Perumbavoor) has filed a separate statement. Along with the statement annexure R7A has been produced. R7A shows that Parapuram where the petitioner has started his establishment is not an area where the functional operation of the scheme has been implemented. It is accordingly stated that the writ petition is premature. 8. After the arguments started, the 5th respondent has filed an additional counter affidavit. This additional counter affidavit was filed in the light of an argument raised on behalf of the petitioner that the petitioner is entitled to engage his own staff as the functional operation of the scheme is not implemented in the area. It is contended through the additional counter affidavit that in an area where the functional operation of the scheme is not implemented there is no necessity to engage workers with Rule 26A registration is incorrect. Rule 26A registration is absolutely necessary in all scheme notified areas. WP(C). 24908/11 -13- Parapuram is a scheme notified area. Registration is mandatory and police protection for doing the work can be granted only if there is a finding that permanent head load workers are issued with Rule 26A. Referring to paragraph 3 of the Kerala Head Load Workers (Regulation of Employment and Welfare) Scheme, 1983 it is contended that the scheme shall be deemed to have come into force from the date of notification in the Gazette. Accordingly it is contended that a differentiation like the scheme notified and scheme implemented is not sustainable. It is pointed out that the statute or the rules do not lay down any distinction between practical implementation or functional operation. It is accordingly contended that if the petitioner wants to engage a head load worker of his own the said head load worker has to be registered under the Kerala Head Load (Attached Sector) Welfare Scheme, 1995. In the absence of any such registration the petitioner should not be allowed to engage his own workers. 9. We have heard the submissions of the learned WP(C). 24908/11 -14- counsel appearing for the petitioner Sri. M.M.Saidu Muhammed, Smt. K.T. Lilly, Govt. Pleader, Sri. Rajesh Vijayan, learned counsel for the 4th respondent, Sri.C.S.Ajith Prakash, learned counsel for the 5th respondent, Sri. Majnu Komath, learned counsel for 6th respondent and Sri. Koshy George, Standing Counsel for the Head Load Workers Welfare Board. The stand taken by the learned Govt. Pleader on the basis of instructions given to her by the Sub Inspector of Police was that since the dispute is purely a labour dispute the same will have to be got settled through the Labour Officer concerned. It was however, submitted that the police will be ready and willing to abide by any directions for police protection. The submissions of the learned counsel were mostly based on the pleadings raised by their parties. Our attention was drawn by the learned counsel in their submissions to the judgment of a Division Bench of this Court in Nujumudeen v. City Police Commissioner, 2011 (3) KLT 268, judgment of a Full Bench of this Court in Raghavan v. Superintendent of WP(C). 24908/11 -15- Police, 1998(2) KLT 732 (F.B), judgment of another Full Bench of this Court in Karunakara Kurup v. State of Kerala, 2004(1) KLT 215 (F.B). Having carefully analysed the submissions addressed at the Bar and having considered the relevant statutory provisions and having kept in mind the ratio emerging from the various decisions cited at the Bar including the judgment of the Full Bench in 1998(2) KLT 732, we are of the view that the petitioner is entitled to relief. In this view, we are accepting the stand taken by the statutory authority, the Kerala Head Load Workers Welfare Board that in as much as the functional operation of the scheme has not been implemented in the area, the petitioner is entitled to engage his permanent workers and workers from pool No.7 of Perumbavoor Local Committee or any other workers who have been issued with cards under Rule 26A(3). Hence we allow this writ petition and direct respondents 1 to 3 to afford adequate police protection to the petitioner to have the works in his establishment, viz., Parcel Service Agency of Kerala Roadways Limited (KRS) at WP(C). 24908/11 -16- Door No.XVII/699 of Perumbavoor Municipality including loading and unloading done by his own permanent workers and by workers of his choice selected from the nearby pools. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) ksv/-