IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 WP(C).No. 5295 of 2011(J) -------------------------------------- PETITIONER(S): --------------- 1. K. ASOKAN, CONVENOR, AITUC, MANGODE P.O., KOLLAM DISTRICT. 2. S. JAMALUDEEN CONVENOR, CITU, MANGODE P.O., KOLLAM DISTRICT. 3. P. HANEEFA, CONVENOR, INTUC, MANGODE P.O., KOLLAM DISTRICT. 4. USUF, CONVENOR, KTUC(M), MANGODE P.O., KOLLAM DISTRICT. 5. SYED MASSOD, CONVENOR, KTUC(B), MANGODE P.O., KOLLAM DISTRICT. 6. AHAMED CONVENOR, INLC, MANGODE P.O., KOLLAM DISTRICT. BY ADV. SRI.R.KRISHNA RAJ RESPONDENT(S): ------------------------- 1. THE APPELLATE AUTHORITY UNDER THE KHLWA & (THE REGIONAL JOINT LABOUR COMMISSIONER) KOLLAM-691 001. 2. THE CONCILIATION OFFICER UNDER THE KHLWA, THE DISTRICT LABOUR OFFICER, PATHANAMTHITTA-689 645. 3. THE ASSISTANT LABOUR OFFICER, ADOOR – 691 523. 4. THE ASSISTANT LABOUR OFFICER, PUNALUR-689 607. 5. THE CONVENOR, KTUC(M), NIRATHUPARA P.O., KOODAL, PATHANAMTHITTA-689 693. WP(C).No. 5295 of 2011(J) 6. THE CONVENOR, INTUC, NIRATHUPARA P.O., KOODAL, PATHANAMTHITTA-689 693. 7. THE CONVENOR, BMS, NIRATHUPARA P.O., KOODAL, PATHANAMTHITTA-689 693. 8. THE SECRETARY, CITUC, THIDI, KALANJOOR P.O., PATHANAMTHITTA-689 693. 9. THE SECRETARY, UTUC, THIDI, KALANJOOR P.O. PATHANAMTHITTA-689 693. 10. THE CONVENER, AITUC, THIDI, KALANJOOR P.O., PATHANAMTHITTA-689 693. R1 TO R4 BY GOVT. PLEADER MR.P.M. MANOJ. R5 TO R8 BY ADV. SMT.A.K.PREETHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 5295 of 2011(J) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT IN WP(C) NO. 24296/2007. EXT.P2: COPY OF THE ORDER OF THE 2ND RESPONDENT DISTRICT LABOUR OFFICER BEARING NO.LR-2189/01 DATED 24/01/2002. EXT.P3: COPY OF THE ORDER OF THE 2ND RESPONDENT DISTRICT LABOUR OFFICER BEARING NO.LR-3543/07 DATED 22/10/2007. EXT.P4: COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 08/02/2008. EXT.P5: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WP(C) NO. 29291 OF 2008 DATED 19/08/2010. EXT.P6: COPY OF THE 15 SUCH AGREEMENTS AND SETTLEMENTS SPANNING A PERIOD OF 18 YEARS FROM 06/12/92 TO 13/12/2010. EXT.P7: COPY OF THE JUDGMENT IN WP(C) NO. 3967/2005 DATED 03/02/2005. EXT.P8: COPY OF THE AGREEMENT DATED 01/07/2005. EXT.P9: COPY OF THE JUDGMENT IN WP(C) NO. 20527/2007 DATED 13/07/2007. EXT.P10: COPY OF THE ARGUMENT NOTE SUBMITTED BY THE COUNSEL OF PETITIONERS DATED 12/01/2011 BEFORE THE 1ST RESPONDENT. EXT.P11: COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 31/01/2011 IN KHWA-3804 OF 2007. EXT.P12: COPY OF THE 2 AGREEMENTS DATED 23/11/2006 AND 04/12/2007 FOR THE WORK IN THE PADAM AREA. EXT.P13: COPY OF THE IDENTITY CARDS OF 8 WORKERS OF THE MANGODE REGION ISSUED BY THE 4TH RESPONDENT. EXT.P14: COPY OF THE ROUGH SKETCH. RESPONDENT'S EXHIBITS: EXT.R5(a): COPY OF THE IDENTITY CARD ISSUED BY THE 3RD RESPONDENT TO SULAIMAN RAWTHER. EXT.R5(b): COPY OF THE CERTIFICATE ISSUED BY THE 3RD RESPONDENT DATED 23/10/2001. EXT.R5(c): COPY OF THE ORDER NO.406/07 DATED 25/08/2007 PASSED BY THE 3RD RESPONDENT. //TRUE COPY// P.S. TO JUDGE rs P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.5295 of 2011 ------------------------------- Dated this the 12th day of July, 2011 J U D G M E N T Ext.P11 order passed by the Regional Joint Labour Commissioner, Kollam disposing of an appeal filed by respondents 5 to 10 herein is under challenge in this writ petition. The brief facts of the case are as follows. 2. The petitioners herein are the convenors of trade unions representing registered headload workers of Mangode Grama Panchayat in Kollam District. Respondents 5 to 10 represent registered headload workers of Kalantoor Grama Panchayat in Pathanamthitta District. Pathanamthitta District was formed in the year 1983. Prior to that the locality where the rival groups of headload workers were working was part of Kollam District. After the formation of Pathanamthitta District, the locality falls within the local limits of two local authorities, viz., Ward Nos.4 and 5 of Mangode Grama Panchayat in Kollam District and Ward Nos.9 and 10 of Kalanjoor Grama Panchayat in Pathanamthitta District. More than a decade ago, a dispute arose as regards the right to do the loading and unloading work in Rajagiri Estate which is situate in Ward No.9 of Kalanjoor Grama Panchayat in Pathanamthitta District. It appears an W.P.(C) No.5295 of 2011 2 agreement was arrived at during the course of conciliation proceedings which resulted in Ext.P2 order dated 24.1.2002 being passed by the District Labour Officer, Pathanamthitta. By that order, the District Labour Officer, Pathanamthitta directed that 60% of the headload work in Rajagiri Estate shall be done by the headload workers of Kalanjoor Grama Panchayat and the remaining 40% of the headload work shall be done by the headload workers of Mangode Grama Panchayat. In other words, the work was distributed in that ratio between the two groups of workers. 3. Years later, yet another dispute arose in the matter of cutting and removal of trees from Ward No.9 of Kalanjoor Grama Panchayat. The contractor who had purchased the right to remove timber filed W.P.(C) No.24926 of 2007 in this Court seeking police protection. In that writ petition, the petitioners and respondents 5 to 10 herein were parties. By Ext.P1 interim order passed on 22.8.2007, a Division Bench of this Court directed the Assistant Labour Officer, Adoor in Pathanamthitta District having jurisdiction over the area to take a decision as regards the entitlement of the headload workers whom the petitioners and respondents 5 to 10 represent, to do the loading work. He accordingly issued notice both the parties and thereafter passed Ext.R5(c) order dated 25.8.2007. In view of the W.P.(C) No.5295 of 2011 3 fact that the locality falls within Pathanamthitta District, the Assistant Labour Officer, Adoor held that only those headload workers who have been issued identity cards by the Assistant Labour Officer, Adoor can work in the locality. In other words, the right of headload workers whom respondents 5 to 10 represent was upheld. 4. Aggrieved thereby, the petitioners moved the District Labour Officer, Pathanamthitta by filing representations dated 10.9.2007 and 18.9.2007. The District Labour Officer thereupon passed Ext.P3 order dated 22.10.2007. Taking note of the fact that the registration of headload workers represented by the petitioners has not been objected to by respondents 5 to 10 and having regard to the fact that an agreement had been earlier arrived at between the parties, the District Labour Officer directed that except in Rajagiri Estate, where the ratio 60:40 stipulated in Ext.P2 shall continue to operate, in the rest of the locality, the work shall be distributed in the ratio 65:35, i.e., 65% of the headload work shall be done by members of respondents 5 to 10 and 35% of the headload work by the members of the unions which the petitioners represent. Aggrieved thereby, both the petitioners and respondents 5 to 10 filed appeals before the Regional Joint Labour Commissioner, Kollam. Both the appeals were dismissed by Ext.P4 order passed on 8.2.2008. W.P.(C) No.5295 of 2011 4 Aggrieved thereby, respondents 5, 7 and 8 filed W.P.(C) No.29291 of 2008 in this Court. By Ext.P5 judgment delivered on 19.8.2010, this Court allowed the writ petition, quashed Ext.P4 and directed the Regional Joint Labour Commissioner, Kollam to pass fresh orders in the matter after affording the parties to the appeals including the petitioners and the party respondents in that writ petition, a reasonable opportunity of being heard. The Regional Joint Labour Commissioner, Kollam thereafter passed Ext.P11 order wherein he upheld the decision of the Assistant Labour Officer, Adoor evidenced by Ext.R5(c) and directed that except in Rajagiri Estate, only those workers registered by the Assistant Labour Officer, Adoor and having identity cards are eligible to do the headload work in Ward No.9 of Kanlanjoor Grama Panchayat. Ext.P11 order is under challenge in this writ petition. 5. I heard Sri.R.Krishnaraj, learned counsel appearing for the petitioners and Smt.A.K.Preetha, learned counsel appearing for respondents 5 to 10. The main contention raised by the learned counsel for the petitioners is that it was taking into account the state of affairs that prevailed prior to the formation of Pathanamthitta District that the Assistant Labour Officer, Punalur granted registration to the workers whom the petitioners represent by permitting them to W.P.(C) No.5295 of 2011 5 work beyond the territorial limits, viz., in Kalanjoor Grama Panchayat. The learned counsel further contended that the District Labour Officer, Pathanamthitta had while passing Ext.P3 order taken note of this aspect and remedied the inequality arising out of the denial of employment to the workers represented by the petitioners by holding that the work should be distributed in the ratio of 65:35. The learned counsel also contended that as the headload workers represented by respondents 5 to 10 have not challenged the registration granted to the workers of petitioners, no objection can be now raised. 6. Per contra, Smt.A.K.Preetha, the learned counsel appearing for respondents 5 to 10 contended relying on the provisions contained in section 25 of the Keerala Headload Workers Act, 1978 and rule 26 of the Kerala Headload Workers Rules, 1981 (hereinafter referred to as 'the Act' and 'the Rules' respectively) that the registration given by the Assistant Labour Officer, Punalur to workers whom the petitioners represent cannot operate beyond the territorial limits of Kollam District, and therefore, the headload workers whom the petitioners represent cannot claim work within the local limits of Pathanamthitta District. The learned counsel also contended that respondents 5 to 10 or the workers whom they represent were not put on notice before the identity cards were issued and that the mere W.P.(C) No.5295 of 2011 6 fact that identity cards were illegally issued enabling the headload workers to work in an area outside the jurisdiction of the Assistant Labour Officer, Punalur will not confer on the beneficiaries, the right to work in Pathanamthitta District. 7. I have considered the rival submissions made at the Bar by the learned counsel on both sides. Section 25 of the Act reads as follows:- 25. Registration of Headload Workers:- (1) Every headload worker shall register his name with such authority or officer in the scheme, on the commencement of the functional operation of the scheme: Provided that the headload workers whose names had already been registered in the prescribed manner or as provided in the scheme, with such authority or officer shall be deemed to have registered their names under these provisions. (2) A headload worker other than a headload worker employed on a regular basis in an establishment and who is registered as headload worker under the rules, shall be allowed or required to work in or for an establishment in an area where a scheme which stipulate payments of wages to headload worker by or through a committee, only if he has registered and obtained an identity card also under the provision of that scheme. Rule 26 of the rules stipulates that the Assistant Labour Officer shall be the authority to prepare a register of headload workers working in the area within his jurisdiction and the Register shall be in Form W.P.(C) No.5295 of 2011 7 No.IV. It is not in dispute that the jurisdiction of the Assistant Labour Officer, Punalur does not extend to any part of Pathanamthitta District which was formed in the year 1983. The Registration of headload workers whom the petitioners represent was made in the year 1991 long after Pathanamthitta District was formed. The Assistant Labour Officer, Punalur could not have therefore granted registration to headload workers for working in Pathanamthitta District, beyond his jurisdiction. Therefore, the mere fact that an incompetent officer who had no authority to affect the rights of headload workers of another district had granted registration to a set of workers and enabled them to claim work in another district cannot confer on the petitioners or the members of the unions represented by them, the right to claim work in Pathanamthitta District. The Regional Joint Labour Commissioner, Kollam was therefore perfectly right in holding that the registered workers who hold identity cards issued by the Assistant Labour Officer, Adoor alone have the right to work in Kalanjoor Grama Panchayat situated in Pathanamthitta District. 8. Section 39 of the Act stipulates that the provisions of the Act and the Scheme shall have effect notwithstanding anything inconsistent therewith contained in any other law or in any award, agreement or contract of service, whether made before or after the W.P.(C) No.5295 of 2011 8 commencement of the Act. In the light of the provisions contained in section 39 of the Act, the agreement, if any, entered into between the rival groups of workers will stand superceded, if such agreement is in conflict with the provisions of the Act. In the view that I have taken, necessarily therefore, it will have to be held that merely because at an earlier point of time, the workers had come to an agreement to share the work in a particular ratio, contrary to the provisions of the statute cannot be a ground to hold the said agreement should continue to govern the rights of parties. I am therefore of the considered opinion that the challenge to Ext.P11 is without any merit. I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed. No costs. P.N. RAVINDRAN, JUDGE. nj.