IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 WP(C).No. 30522 of 2008(H) --------------------------------------- PETITIONER: ------------------- STAR ENTERPRISES, PHARACEUTICAL DISTRIBUTORS, KADAPPAKKADA, KOLLAM- 691 008, REP. BY ITS ASSISTANT MANAGER. BY ADV. SRI.ALEX N.MATHEW (KOLLAM), ADV. SRI.H.RAMANAN, ADV. SRI.JAMES JOSE. RESPONDENTS: ----------------------- 1. SUPERINTENDENT OF POLICE, KOLLAM. 2. CIRCLE INSPECTOR OF POLICE, EAST POLICE STATION, KOLLAM. 3. SUB INSPECTOR OF POLICE, EAST POLICE STATION, KOLLAM. 4. CITU HEAD LOAD WORKERS UNION, KADAPPAKKADA UNIT, CHINNAKKADA, KOLLAM. 5. AITUC HEAD LOAD WORKERS UNION, KADAPPAKADA UNIT, KADAPPAKADA, KOLLAM. R1 TO R3 BY SR. GOVT. PLEADER SRI.BENJAMIN PAUL, R4 & R5 BY ADV. SRI.K.SASIKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.30522/2008-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PETITIONER'S COMPLAINT TO THE R.3. EXT.P.2: COPY OF THE PETITION FILED BEFORE R.1. EXT.P.3: COPY OF THE ACKNOWLEDGEMENT OF RECEIPT OF PETITION. EXT.P.4: COPY OF THE MUSTER ROLL RELATING TO JANUARY 2007. EXT.P.5: COPY OF THE MUSTER ROLL RELATING TO OCTOBER 2008. RESPONDENTS' EXHIBITS: EXT.R5.A: COPY OF THE RECEIPT DTD. 18/08/2004 ISSUED BY THE R.4. UNION TO THE PETITIONER ON RECEIPT OF LABOUR CHARGES. EXT.R5.B: COPY OF THE RECEIPT DTD. 02/09/2008 ISSUED BY THE R.4. TO THE PETITIONER. EXT.R5.C: COPY OF THE RECEIPT DTD. 02/09/2008 ISSUED BY THE R.5 TO THE PETITIONER FOR RECEIPT OF ONAM BONUS. EXT.R5.D: COPY OF THE IDENTITY CARD ISSUED TO THIS DEPONENT BELONGING TO THE R.5. EXT.R5.E: COPY OF THE IDENTITY CARD ISSUED TO THE CONVENOR OF THE R.4. UNION. EXT.R5.F: COPY OF THE REPRESENTATION DTD. 08/10/08 SUBMITTED BY THE R.4. BEFORE THE LABOUR OFFICER, KOLLAM (2ND CIRCEL). EXT.R5.G: COPY OF THE REPRESENTATION SUBMITTED BY THE R.5. BEFORE THE SAME OFFICER. //TRUE COPY// P.S. TO JUDGE. prv. K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== W.P.(C)NO.30522 OF 2008 ============================ DATED THIS THE 20TH DAY OF NOVEMBER 2008 JUDGMENT Balakrishnan Nair,J. The petitioner is a firm engaged in the distribution of pharmaceutical items. Loading/unloading in its establishment was being done by one Mr. Sasidharan Pillai, who is a worker engaged by the said firm. While so, when some medicines were brought on 19-9-2008 and it was being unloaded in the premises of the petitioner's establishment, members of respondents 4 and 5 came and obstructed the same. They demanded, they should be given the work. The petitioner submits, this being not a scheme covered area, the petitioner is entitled to engage workmen of his choice to do the work. Confronted with the obstruction, the petitioner submitted Ext.P1 representation before the Sub Inspector of Police and Ext.P2 representation before the District Superintendent of Police seeking necessary police W.P.(C)NO. 30522/2008 -2- protection. Alleging that the police failed to take any effective action to protect the petitioner, this writ petition is filed. 2. Respondents 4 and 5 have filed a counter affidavit stating that all along the members of respondents 4 and 5 were doing the loading/unloading work in the petitioner's establishment. The medicines from the parcel office were being brought to the establishment in delivery vans, tempos etc. Recently the petitioner has started a practice of bringing the medicines in passenger autorikshaws. When the medicines were brought in other vehicles, it was being unloaded by the workmen belonging to respondents 4 and 5. After the new system of bringing the same in passenger autorikshaws was introduced, the members of respondents 4 and 5 are denied employment and this writ petition is filed to seek police protection to deny employment to them, it is submitted. Respondents 4 and 5 have also produced three receipts to show that the petitioner was engaging their members for its work and wages were being paid as evident from the receipts. W.P.(C)NO. 30522/2008 -3- 3. The petitioner has filed a reply affidavit denying the allegations of respondents 4 and 5. According to the petitioner, the receipts were issued after collecting some donation from the petitioner during Onam season by the local workmen and those are not receipts issued for payment of wages. 4. The learned Government Pleader, upon instructions, submitted that the articles brought in autorikshaws were being unloaded by the petitioner or his own workmen and when goods are brought in other large vehicles, it was being unloaded by the local headload workers. 5. It is a common case that the area is not a scheme covered area. The dispute relates to the unloading of goods brought in passenger autorikshaws. We feel that the petitioner should be conceded freedom to engage his own workmen to unload the goods brought in passenger autorikshaws. If the respondents 4 and 5 have any claim for the said work also, they may move the statutory authorities under the Kerala Headload Workers Act and establish their claim. Till such time, if any obstruction is caused to the unloading of goods from passenger W.P.(C)NO. 30522/2008 -4- autorikshaws, the petitioner may inform the third respondent. In that event the third respondent shall remove the obstruction. This direction will not affect the powers of the statutory authorities to consider the claim of respondents 4 and 5. If any order is passed by the statutory authorities in favour of respondents 4 and 5, this direction will be subject to such orders. The writ petition is disposed of as above. Sd/- K. BALAKRISHNAN NAIR, JUDGE Sd/- M.C. HARI RANI, JUDGE ks. W.P.(C)NO. 30522/2008 -5-