IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 WP(C).No. 16089 of 2005(M) -------------------------- PETITIONER(S): --------------- G.O. JOY, CHIRIYANKANDATH HOUSE, KEY KO ROAD, AIKYA NAGAR, P.O. KURIACHIRA, THRISSUR. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): --------------- 1. THE KERALA HEADLOAD WORKERS WELFARE BOARD, ERNAKULAM, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER. 2. THE KERALA HEADLOAD WORKERS WELFARE BOARD, THRISSUR LOCAL COMMITTEE, JAI HIND BUILDING THRISSUR, REPRESENTED BY ITS CHAIRMAN. 3. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.BABU KARUKAPPADATH, SC,KHLWWB FOR R2 SRI.KOSHY GEORGE, SC, KHLWWB FOR R1,R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXTS: EXT.P1:- COPY OF IDENTITY CARD ISSUED TO PETITIONER U/R.26A OF HEADLOAD WORKERS RULES. EXT.P2:- COPY OF REPRESENTATION DTD.23.3.2005 SUBMITTED BY PETITIONER TO R2. EXT.P3:- COPY OF LETTER DTD.11.4.2005 ISSUED BY R2 TO THE PETITIONER. EXT.P4:- COPY OF ORDER DTD.9.5.2005 ISSUED TO K.A. DEVASSY BY R2. RESPONDENTS EXTS: EXT.R1(a):- COPY OF ATTENDANCE REGISTER IN RESPECT OF POOL NO.24 A & B UNDER THRISSUR LOCAL COMMITTEE FROM JAN.2005 TO MAY 2005. EXT.R1(b);- COPY OF ACQUAINTANCE ROLL RELATING TO POOL NO.A & B UNDER THRISSUR LOCAL COMMITTEE FROM JAN.2005 TO MAY 2005. /TRUE COPY/ P.A.TO JUDGE S. SIRI JAGAN, J. ------------------------------ W.P.(C) No.16089 OF 2005 ------------------------------- Dated this the 31st day of MAY, 2010 J U D G M E N T The petitioner claims to be the headload worker registered under Rule 26A of the Kerala Headload Workers Rules as evidenced by Ext.P1 identity card. According to the petitioner, the petitioner was working in the place of his father-in-law who was, on account of indifferent health, not working and was due to retire on superannuation on 31.5.2005. The petitioner would contend that under clause 6B of the Kerala Headload Workers (Regulation of Employment Welfare) Scheme 1983, the 2nd respondent is bound to assess the probable number of workers that may be required additionally on account of retirement on superannuation, death, disability, resignation, removal and expansion of the Scheme and resolve to register such number of additional workers in the committee after complying with the procedure contemplated in sub rule (2) of clause 6B. The petitioner complains that the second respondent is not taking W.P.(c)No.16089/05 2 appropriate steps to comply with the said procedure. The petitioner, therefore seeks the following reliefs: “a) Issue a writ of certiorari or any other appropriate writ or order quashing and setting aside Exhibits p-3, b) A writ of mandamus, or any other writ, order or direction, directing the 2nd respondent to fill up the vacancies in Pool 26A of Thrissur Local Committee, d) A writ of mandamus, or any other writ, order or direction, directing the 2nd respondent to consider the petitioner to the existing vacancy and permit him to continue till the vacancies are filled, e) Declare that Clause 6B(2) of the Kerala Headload Workers (Regulation of Employment and Welfare)Scheme, 1983 to the extent it stipulates that a registered worker working in that area alone can be considered for replenishment is arbitrary, illegal and unconstitutional and...” However, the learned counsel for the petitioner submits that the petitioner does not now press prayer (e) of the writ petition and would be satisfied, if the second respondent takes appropriate steps to fill up vacancies as contemplated under clause 6B of the Scheme. 2. A counter affidavit has been filed by the second respondent, in which the contentions of the petitioner has been controverted specifically in paragraphs 3, 4 and 6 which read thus: W.P.(c)No.16089/05 3 “3. The claim of the petitioner that he commenced the service as Headload worker under Pool No.24A of Thrissur Local Committee in the year 2000 is totally incorrect and baseless. It is submitted that the petitioner has never work under Pool No.24A or under any other pool under Thrissur Local Committee, Thrissur. It is true that Sri.K.A.Devassy is a registered Headload worker with Reg.No.24A/6 under the Thrissur Local Committee. However the contention that the petitioner was inducted in the place of Sri.K.A.Devassy is totally incorrect and baseless. There is no provision or procedure for inducting any other person in the place of a registered Headload worker. 4. It is also incorrect to say that Sri.K.A.Devassy has become unwell. Such an information was never conveyed to the respondents. Moreover from the records available with the 2nd respondent it is clear that Sri.K.A.Devassy has been regularly attending the work till 31.5.2005 and he has been receiving salary regularly. True copy of the attendance register in respect of Pool No.24A & B under Thrissur Local Committee for the period from January 2005 to May 2005 is produced herewith and marked as Exhibit-R1 (a). A true copy of the acquaintance roll relating to pool No.A & B under Thrissur Local Committee for the period from January 2005 to May 2005 is produced herewith and marked as Exhibit-R1(b). It is clear from Ext.R1(a)& R1 (b) that Sri.K.Devassy has been regularly attending the work as Headload worker and receiving wages for the same. It is further clear from those documents that the petitioner has never attended loading and unloading work or received wages from the Kerala Headload Workers Welfare Board. 5. xxxx xxxxx xxxxx 6. So also the further contention of the petitioner that there are a number of vacancies of Headload workers under the 2nd respondent W.P.(c)No.16089/05 4 and the respondents are not filling up the same under clause 6B(1) of the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme 1983 is totally incorrect and misleading. There is no specific notified vacancies in the pool as sought to be projected by the petitioner. It is submitted that the pools were formed, when the scheme was implemented in the area, registering all the then Headload workers under clause 6A of the scheme. However there were drastic reduction in loading and unloading work in the area. So though some of the workers were removed from the roll on superannuation, death etc. the committee has not found it necessary to engage new workers. As already submitted it is only because of the reduction in work in the area and not because of the pressure of the regular workers as contented by the petitioner in the W.P. It is respectfully submitted that under Clause 6B of the scheme, the committee need assess the probable number of workers required additionally in the locality only if it is satisfied that more numbers of workers are necessary. As already submitted the committee has not taken such a decision only because it is satisfied that the Headload work in the area has been considerably reduced because of the reduction in business in the area. It is respectfully submitted that Ext.P2 representation has been answered through Ext.P3.” 3. I have considered the rival contentions in detail. The question as to whether there is enough work available despite superannuation, death, disability, resignation etc. of existing workers is a pure question of fact. The second W.P.(c)No.16089/05 5 respondent has specifically stated in the counter affidavit that there was drastic reduction in loading and unloading work in the area. The petitioner has no case that overlooking any valid claim of the petitioner for registration under clause 6B of the Scheme, any other headload worker has been included by the second respondent in the pool. That being so, the remedy of the petitioner lies in applying for registration as headload worker under clause 6B of the Scheme as and when the second respondent publishes notification inviting applications for the same. Therefore, without prejudice to that right, this writ petition is dismissed. S. SIRI JAGAN, JUDGE acd W.P.(c)No.16089/05 6 W.P.(c)No.16089/05 7