IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 WP(C).No. 317 of 2011(L) ----------------------------------- PETITIONER(S): ----------------------- VIJAYA KUMAR, S/O.VELU AGED 40 YEARS POONKAVANAM, KUDUVANKADU, PERIGOTTUKURUSSI, ALATHUR, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): -------------------------- 1. THE SUB INSPECTOR OF POLICE KOTTAYI POLICE STATION , PALAKKAD. 2. HEAD LOAD WORKERS (INTUC) PERIGOTTUKURUSSI UNIT, REP BY ITS SECRETARY PERIGOTTUKURUSSI, ALATHUR, PALAKKAD. *ADDL. R3 & R4 IMPLEADED 3. THE DISTRICT LABOUR OFFICER, PALAKKAD. 4. KERALA HEAD LOAD WORKERS WELFARE FUND BOARD, DISTRICT OFFICE, PALAKKAD. *ADDL.R3 & R4 ARE IMPLEADED AS PER ORDER DT. 6.01.2011 IN IA. 241/2011 R1 & R3 BY GOVT. PLEADER SMT.CHARISHMA ADDL. R4 BY ADV. SRI.KOSHY GEORGE, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO. 317/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ACKNOWLEGEMENT DTD. 4.8.2010 ISSUED BY THE PALAKKAD DISTRICT INDUSTRIES CENTRE. P2:- COPY OF THE LICENSE DTD. 28.8.2010 ISSUED BY the PERINGOTTUKURUSSI GRAMA PANCHAYATH. P3:- COPY OF THE COMPLAINT DTD. 13.12.2010, ADDRESSED TO THE IST RESPONDENT. RESPONDENT'S EXHIBITS NIL TRUE COPY P.S. TO JUDGE tss R.BASANT & K.SURENDRA MOHAN, JJ. ---------------------------------------------------- W.P.(Civil) No.317 of 2011 ---------------------------------------------------- Dated this the 20th day of January, 2011 Judgment BASANT, J. The petitioner has come to this court with this writ petition under Article 226 of the Constitution to issue directions to the first respondent to afford police protection to the petitioner to get the work of loading and unloading in his establishment carried on without any obstruction from the second respondent. Subsequently, the third respondent, the District Labour Officer and the 4th respondent, Kerala Head Load Workers Welfare Fund Board have been arrayed as additional respondents 3 and 4. The learned Government Pleader has entered appearance for respondents 1 and 3. The 2nd respondent has not chosen to enter appearance. 2. Certain fundamental facts are admitted and not disputed. The petitioner is running a hollow bricks manufacturing unit. There is work of loading and unloading in the establishment. The area in which the petitioner establishment is situated is an area covered by the Scheme framed under the Kerala Head Load WPC 317/2011 2 Workers Act. No permanent workers have been registered to do loading and unloading work in the establishment of the petitioner in accordance with Act, Rules and Scheme. Petitioner wants to got the work of loading and unloading done without employing registered workers belonging to the pool of the locality. 3. The real contention raised by the learned counsel for the petitioner is two-fold. First of all, he contends that he has not employed any workman and that he and his wife along with some other cousins of the petitioner are getting the work of loading and unloading done. Secondly, he contends relying on the decision of this court in Obrin v. Sub Inspector of Police (2005(3) KLT 861) that the work in the establishment is not mainly loading and unloading, the work of loading and unloading is only incidental and ancillary to the main work going on in the establishment. Hence the petitioner questions the liability of the petitioner to get permanent workers of his establishment registered under the Scheme. 4. The learned Standing Counsel for the 4th respondent Mr.Koshy George contends that in as much as the area is covered under the Act, Rules and Scheme, the work of loading and WPC 317/2011 3 unloading can be done only by registered workers. The option of the petitioner to register his permanent employees to get the work of loading and unloading is not disputed. But, there is no such registered workers now. If there is no such registered attached/permanent workers in the establishment of the petitioner, the work of loading and unloading has to be entrusted to registered loading and unloading workers in the local pool. That work cannot be got done by engaging the workers of the choice of the petitioner who are not registered. In as much as there is no registered attached/permanent workers for the petitioner, the work of loading and unloading has got to be entrusted to registered pool workers, contends the Standing Counsel. 5. Learned Standing Counsel for the 4th respondent further points out that if there is no employment of workers at all and the work is done by the employer and his wife as contended by the petitioner, police protection can be granted to him to get such work done. But if anyone other than close relatives are employed, such persons cannot be permitted to carry on loading and unloading work by describing themselves to be relatives of WPC 317/2011 4 the petitioner. That course cannot be approved by the 4th respondent-Board, submits the learned Standing Counsel. 6. The learned Standing Counsel for the 4th respondent submits that establishments coming under Schedule I of the Act need not be establishments where work of loading and unloading is the main work. A perusal of the entries in Schedule I cannot justify this conclusion, contends the learned counsel. Counsel argues that even if the dictum in Obrin v. Sub Inspector of Police (2005(3) KLT 861) were held to be valid and can be said to explain the dictum laid down by the Full Bench of this court in Raghavan v. Superintendent of Police (1998(2) KLT 732), the question as to whether the work of loading and unloading in the instant case is incidental and ancillary will have to be raised and decided by resort to appropriate proceedings under Section 21 of the Head Load Workers Act. Without and before that dispute is resolved, engagement of unregistered workers of the choice of the petitioner cannot be permitted in a Scheme covered area. 7. We find merit in the contention of the learned Standing Counsel for the 4th respondent. We take note of the undisputed circumstances. Area is the Scheme covered area. There is work of WPC 317/2011 5 loading and unloading in the establishment of the petitioner. There is no registered attached/permanent workers in accordance with law or Scheme in the establishment of the petitioner. The dispute as to whether the work is purely incidental and ancillary to the main work has not to be resolved by the dispute resolution mechanism available under Section 21 of the Act. We are in these circumstances satisfied that no blanket order for police protection can be granted to the petitioner to employ workers of his choice to do the work of loading and unloading. 8. However, we take note of the submission of the learned counsel for the petitioner that the petitioner and his wife shall be doing the work of loading and unloading. If that be so, the 4th respondent has no objection against affording police protection to the petitioner and his wife to do the work of loading and unloading. No registered workers can raise objection to such course accepts the 4th respondent. 9. In the result, this petition is allowed in part. Respondent No.1 shall afford police protection to the petitioner and his wife to do the loading and unloading work in his establishment. It is made clear that this protection will not clothe the police with WPC 317/2011 6 power to grant police protection if the work is done by any person other than the petitioner and his wife. If the petitioner has still a dispute as to whether registered workers need to be employed, that dispute will have to be resolved by resort to the dispute resolution mechanism available under Section 21 of the Act. R.BASANT, JUDGE. K.SURENDRA MOHAN, JUDGE. srd WPC 317/2011 7