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. 6278 of 2011(H) --------------------------------------- PETITIONER(S): ------------------------ MANAKKIL TRADERS, A REGISTERED PARTNERSHIP FIRM WITH ITS REGISTERED OFFICE AT 19/553, OLD MARKET, ALUVA, REPRESENTED BY ITS MANAGING PARTNER, SHRI, M.J.THOMAS. BY ADVS. SRI.DINESH R.SHENOY, SRI.G.HARIKRISHNAN (TRIPUNITHURA). RESPONDENT(S): ----------------------------- 1. THE SUB INSPECTOR OF POLICE, ALUVA POLICE STATION, NEAR PUMP JUNCTION, ALUVA-683 101. 2. THE KERALA HEADLOAD WORKERS ASSOCIATION, AFFILIATED TO THE INTUC NEAR PALACE, ALUVA-683101, REPRESENTED BY ITS PRESIDENT, SHRI.M.J.JACOB. 3. THE KERALA HEADLOAD AND GENERAL WORKERS UNION, AFFILIATED TO THE AITUC, NEAR BANK JUNCTION, ALUVA-683101, REPRESENTED BY ITS SECRETARY, KOZHIPPURAM KALADHARAN. *ADDL.R4 & R5 IMPLEADED: R4. KERALA HEADLOAD WORKERS WELFARE FUND BOARD, ALUVA COMMITTEE, OLD PRIVATE BUS STAND, ALUVA - 683 101, REP. BY ITS CONVENOR. R5. THE ASSISTANT LABOUR OFFICER, ALUVA - 683 101. (*ADDL.R4 & R5 ARE IMPLEADED AS PER ORDER DTD. 9/03/2011 IN I.A.NO.4020/2011) R1 & R5 BY GOVERNMENT PLEADER SMT.C.M. CHARISMA R2 & R3 BY ADVS. SRI.C.ANILKUMAR (KALLESSERIL), SRI.C.Y.VINOD KUMAR. ADDL.R4 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.6278/2011 H APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF RECEIPT NO.87 DTD. 24/02/2010 EVIDENCING PAYMENT OF LICENSE FEE BY THE PETITIONER FIRM. P2: COPY OF THE REPRESENTATION DTD. 19/02/2011 SUBMITTED BY THE PETITIONER BEFORE THE ALUVA MERCHANTS ASSOCIATION. P3: COPY OF THE COMPLAINT DTD. 23/02/2011 SUBMITTED BY THE ALUVA MERCHANTS ASSOCIATION ON BEHALF OF THE PETITIONER FIRM BEFORE THE 1ST RESPONDENT. P4: COPY OF THE IDENTITY CARD OF SHRI. K.U.HAMSA. P5: COPY OF THE IDENTITY CARD OF SHRI. C.K.ABDU. P6: COPY OF THE IDENTITY CARD OF SHRI. K.V. SURESH. P7: COPY OF THE IDENTITY CARD OF SHRI.V.L.DEVASSY. P8: COPY OF THE IDENTITY CARD OF SHRI. K.K.RAJU. P9: COPY OF DEED OF RE-CONSTITUTION OF PARTNERSHIP OF M/S. K.M.ABDUL KHADER & SONS DTD. 1/04/1996. P10: COPY OF DEED OF PARTNERSHIP OF M/S.K.M.ABDUL KHADER & SONS/ MANAKKIL TRADERS DTD. 1/04/2003. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss R.BASANT & K.SURENDRA MOHAN, JJ ===================== W.P.(C)No.6278 of 2011 ===================== Dated this the 22nd day of March, 2011 JUDGMENT Basant, J. Petitioner has come to this Court with this petition under Article 226 of the Constitution of India for issue of directions to the first respondent to afford protection to the petitioner for the peaceful and orderly running of an establishment Manakkil Traders employing 5 attached registered workers under the Kerala Headload Workers Act against illegal obstruction from respondents 2 and 3. 2. According to the petitioner, it is a registered partnership firm. There is loading and unloading work in this establishment. According to the petitioner, the present partnership firm was originally registered in the name of 'K.M.Abdul Khader and Sons'. There were four partners for the said firm. On 1.4.2000, there was reconstitution of the partnership. Two partners retired Wp(C)6278/2011 -:2:- from the firm and one was inducted. The partnership continued with three partners. Later on 1.4.2003, the partnership was again reconstituted, one retired from the firm and another came in. The name of the firm was changed to its present name in that reconstitution. 3. There were five attached registered workers. Four of them were registered when the firm was known by name 'K.M.Abdul Khader and Sons'. The fifth was registered after the partnership changed its name to 'Manakkil Traders'. According to the petitioner, all the five attached workers covered by Exts.P4 to P8 have registration cards and they are entitled to do the loading and unloading work in the petitioner establishment and respondents 2 and 3 have no right to raise objections. It is in these circumstances that the petitioner came to this Court with this petition seeking police protection. 4. In the course of the proceedings, respondents 4 and 5 were impleaded. 4th respondent is the Kerala Headload Workers Welfare Board. 5th respondent is the Assistant Labour Officer, Wp(C)6278/2011 -:3:- Aluva having jurisdiction over the area. 5. Respondents 2 and 3 raised objections against police protection. Counsel raised four specific grounds. It is contended that 'Manakkil Traders' is not a continuation of 'K.M.Abdul Khader and Sons'. The two are totally different partnership firms. In the light of the contentions raised, we wanted the 5th respondent Asst.Labour Officer and the authority-in-charge of registration to take a specific and definite stand. Learned Government Pleader, after taking instructions, submits that the 5th respondent takes the stand after due enquiry that 'Manakkil Traders' is a continuation of ' M/s.K.M.Abdul Khader and Sons' and in this view of the matter, attached registered workers who were registered, when the partnership was having the name of 'K.M.Abdul Khader and Sons' continue to be attached registered workers of Manakkil Traders. At the moment, we find that there is no reason to disagree with the stand taken by the learned Government Pleader on behalf of the 5th respondent. 6. The next contention raised is that the registration of Wp(C)6278/2011 -:4:- attached workers under the Act cannot be transferred under law. There can be no dispute to that proposition and the petitioner accepts that contention. The only contention is that 'Manakkil Traders' is not a different entity from 'K.M.Abdul Khader and Sons', but is only a partnership firm reconstituted with a different name. The second contention is also not, in these circumstances, relevant. 7. Learned counsel then contends that as per Ext.R2(a), the petitioner was informed in response to the query under the Right to Information Act that 'Manakkil Traders' has only one employee registered. We do not attach any crucial significance to the same. Even according to the petitioner, in the name of 'Manakkil Traders' only one employee, that is the employee covered under Ext.P7 identity card was registered. The others are only continuing employees of the earlier partnership firm. 8. Lastly and fourthly, counsel for respondents 2 and 3 contends that there is nothing available to indicate that the registered employees of 'K.M.Abdul Khader and Sons' had Wp(C)6278/2011 -:5:- actually continued to do the work. There has been no subsequent acts work which must be complied with in respect of attached workers. That contention, even if accepted, amounts to only omission to comply strictly with the conditions under Exts.P4 to P8. 9. In the light of the stand taken by the 5th respondent that 'Manakkil Traders' is a continuation of the earlier partnership firm M/s.'K.M.Abdul Khader and Sons', we find no merit in the contention that the employees covered by Exts.P4 to P8 cannot work as registered workers of the petitioner. We are satisfied that protection can be granted as prayed for. 10. Respondents 2 and 3 shall, of course, be at liberty to raise a dispute as to whether the employees covered by Exts.P4 to P6 and P8 can be reckoned as employees of the petitioner 'Manakkil Traders'. That dispute will have to be resolved by resort to the procedure under Section 21 of the Kerala Headload Workers' Act. We make it clear that the protection granted by this Court in this judgment shall be subject to the decision to be taken on that Wp(C)6278/2011 -:6:- question by the authorities under Section 21 of the said Act. 11. Learned counsel for respondents 2 and 3 raised a contention that the attached registered worker covered by Ext.P5 has already crossed the maximum age so that he cannot work as a headload worker. We make it clear that this order of protection is subject to all the provisions of the Act and Rules. Petitioner can seek cancellation of registration or non-allotment of work to him if he has already attained the maximum age. 12. In the result, this petition is allowed. First respondent is directed to afford protection to the petitioner to get the loading and unloading work of the petitioner establishment performed by five registered attached workers shown in Exts.P4 to P8 against any obstruction by respondents 2 and 3. 13. We make it clear that the directions hereby given are without prejudice to the right of respondents 2 and 3 to raise a dispute about the validity of the continuation of such employees (under Exts.P4 to P8) as the employees of the petitioner and the authorities under Section 21 of the Kerala Headload Workers' Act Wp(C)6278/2011 -:7:- shall be at liberty to take appropriate decision taking into account all the relevant provisions of the Act and Rules. The order shall remain in force only till such decision is taken under Section 21 of the Act. R.BASANT, JUDGE K.SURENDRA MOHAN, JUDGE CDP/-