IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 4TH JUNE 2008 / 14TH JYAISHTA 1930 WP(C).No. 15217 of 2008(J) -------------------------- PETITIONER: ------------ M/S.STAR INDIA CONVEYORS, VII/1052, NIDA, KANJIKODE, PALAKKAD DISTRICT, BY MANAGING PARTNER K.A.HASHIM S/O.K.M.ISMAIL NOW RESIDING AT G-11, KAILAS NAGAR, PUDUSSERY, PALAKKAD. BY ADV. SRI.RAJESH SIVARAMANKUTTY SMT.A.PREMAKUMARI RESPONDENTS: ------------- 1. THE DISTRICT SUPERINTENDENT OF POLICE, PALAKKAD. 2. THE SUB INSPECTOR OF POLICE, WALAYAR POLICE STATION, WALAYAR, PALAKKAD DISTRICT. 3. THE ASSISTANT LABOUR OFFICER, III CIRCLE, PALAKKAD. 4. HEAD LOAD WORKERS UNION (C.I.T.U) KIZHAKKUMURY, POOL NO. 17, BY ITS SECRETARY, KIZHAKKUMURY, PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. FOR R4 SRI.LIJU. M.P FOR R.4 GOVT. PLEADER SRI.BENJAMIN PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 15217/08 APPENDIX PETITIONER'S EXTS. EXT.P1 - TRUE COPY OF THE PROCEEDINGS-CUM-ORDER DATED 18.1.2007 OF THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, PALAKKAD. EXT.P2 - TRUE COPY OF THE AMENDED ARTICLES OF AGREEMENT DATED 24.6.2002 BETWEEN GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, PALAKKAD AND THE PETITIONER. EXT.P3 - TRUE COPY OF THE LICENSE DATED 28.3.2008 ISSUED TO THE PETITIONER BY THE RUBBER BOARD. EXT.P4 - TRUE COPY OF THE CERTIFICATE OF REGISTRATION UNDER THE KERALA VALUE ADDED TAX RULES DATED 5.6.2007ISSUED BY THE COMMERCIAL TAX OFFICER, SECOND CIRCLE, PALAKKAD. EXT.P5 - TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES DATED 10.3.2008. EXT.P6 - TRUE COPY OF THE CONSENT ISSUED TO THE PETITIONER BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 24.3.2008. EXT.P7 - TRUE COPY OF THE ACKNOWLEDGEMENT DATED 20.2.2007 ISSUED BY THE DEPARTMENT OF INDUSTRIES TO THE PETITIONER. EXT.P8 - TRUE COPY OF THE LICENSE ISSUED TO THE PETITIONER BY THE PUDUSSERY GRAMA PANCHAYAT DATED 8.4.2008. EXT.P9 - TRUE COPY OF THE APPLICATION DATED 16.5.2008 MADE BY UNNIKRISHNAN K., BEFORE THE 3RD RESPONDENT. EXT.P10 - TRUE COPY OF THE APPLICATION DATED 16.5.2008 MADE BY PRAKASH A.P., BEFORE THE 3RD RESPONDENT. EXT.P11 – TRUE COPY OF THE APPLICATION DATED 16.5.2008 MADE BY SHAHASMON T.A. BEFORE THE 3RD RESPONDENT. EXT.P12 - TRUE COPY OF THE APPLICATION DATED 16.5.2008 MADE BY HASEEB T.K., BEFORE THE 3RD RESPONDENT. EXT.P13 - TRUE COPY OF THE REPRESENTATION DATED 13.5.2008 MADE TO THE 1ST RESPONDENT WITH COPY TO THE 2ND RESPONDENT BY THE PETITIONER. RESPONDENTS' EXTS. EXT.R4(a) – TRUE COPY OF THE PETITION DATED 21.5.2008 SUBMITTED BEFORE RESPONDENT NO.3. /TRUE COPY/ K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- W.P.(C) NO. 15217 OF 2008-J ----------------------------------------- Dated 4th June, 2008. JUDGMENT Balakrishnan Nair, J. The petitioner is a small scale industrial unit. It is yet to start commercial production. It is proposing to hold a trial run. It has got 17 workmen. Out of the 17 workmen, 4 workmen are set apart for doing the loading/unloading work in the establishment. Those workmen have already filed Exts.P9 to P12 applications for registration under the Kerala Headload Workers Rules. When the petitioner attempted to do the unloading of raw materials in its unit using those four workmen, the members of the 4th respondent union caused obstruction to the same. They claimed work, on the ground that it is a scheme covered area. The petitioner's workmen are not having registration under the Headload Workers Rules and therefore, the union claimed that its members are entitled to do the work. Feeling aggrieved by the obstruction caused by the members of the 4th respondent, the petitioner filed Ext.P13 representation before the police, seeking WPC 15217/08 2 protection. Thereafter, this writ petition is filed, seeking appropriate reliefs. 2. The 4th respondent has filed a counter affidavit, stating that the members of the local pool are entitled to do the loading/unloading work in the petitioner's establishment, as long as the petitioner does not have any registered workmen. This submission is made, relying on para 6(1) of the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme , 1983, 3. Heard the learned counsel on both sides, including the learned Government Pleader for the official respondents. The learned counsel for the 4th respondent relying on the decision of a learned Single Judge in John K. Paul v. State of Kerala [1998(2) KLT 887] submitted that the petitioner's workmen, who have no registration under the Headload Workers Rules, are not entitled to do the unloading of raw materials. 4. Section 26 of the Kerala Headload Workers Act deals with employment of persons in a new establishment. The said provision reads as follows: “26. Employment of persons in new establishment: (1) Notwithstanding anything contained in this Act, when a new establishment or firm has started otherwise than by the change of ownership or name or by shifting of an establishment or firm from one place to another, the employer may employ on a regular basis any person of his choice for carrying out the WPC 15217/08 3 loading and unloading work in his establishment or firm. Provided that any headload worker employed or engaged for loading or unloading work in or for an establishment or firm shall not be denied his employment in that establishment or firm. (2) Every employer of new establishment or firm as mentioned in sub-s.(1) shall furnish the details of headload workers employed by him within 30 days from the date of such employment to the authority or officer referred to in S.25. (3) No headload worker employed in any establishment who has been in continuous service for not less than one year under an employer or contractor shall be denied employment by that employer until the headload worker has been-- (a) given one month's notice in writing indicating the reasons for denial of employment and the period of notice has expired or the headload worker has been paid in lieu of such notice wages for the period of the notice. (b) paid at the time of denial of employment compensation which shall be equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in excess of six months.” Sub-section (1) expressly enables the employer to employ on regular basis any person of his choice to carry out the loading and unloading work. The said section also mandates that the employer should inform the officer or authority concerned, referred to in Section 25 about the details of the headload workers employed by him. The petitioner's establishment is a new establishment. The petitioner's workmen have already moved the competent WPC 15217/08 4 authority for registration, as evident from Exts.P9 to P12. It is elementary that the provisions of a scheme cannot override the provisions of the parent Act. If the provisions of para 6(1) of the Scheme are read mechanically, then the right conferred on the employer to engage workmen of his choice permanently under Section 26(1) will become illusory. So, the provisions of para 6(1) of the Scheme and the decision of this Court mentioned above, interpreting the same, should be understood in the light of the statutory provisions in the parent Act. This being a new establishment, the petitioner should be conceded freedom to engage permanent workmen of its choice, pending the applications for registration submitted by its workmen. 5. In view of the above position, if the workmen belonging to the 4th respondent are causing any obstruction to the loading/unloading work done by the workmen, who are the applicants in Exts.P9 to P12, the petitioner may inform the 2nd respondent. In that event, the 2nd respondent shall remove the obstruction offered by the 4th respondent or its members. 6. The learned counsel for the 4th respondent prayed that if the applications submitted by the petitioner's workmen are kept pending indefinitely, the 4th respondent's right will prejudiced and therefore, the 3rd respondent A.L.O may be directed to consider and pass orders on Exts.P9 to P12. It is also pointed out that there is a specific prayer for the same in the WPC 15217/08 5 writ petition. 7. Having regard to the nature of the dispute and the rival claims of the workmen, it is only appropriate that the 3rd respondent may pass final orders on Exts.P9 to P12 within three weeks from the date of production of a copy of this judgment. It is ordered accordingly. The Writ Petition is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. Nm/