Unattached Headload Workers have no right under the Act to claim the work of a private establishment
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Contents

  1. 1 Rule 26 C of the Kerala Headload Workers Rules, 1981 
  2. 2 Kerala Headload Workers Act, 1978 
    1. 2.1 Jnana Prakasham v. Natarajan (2002(1) KLT 39) 
    2. 2.2 Rule 26C of the Rules reads as follows: 
      1. 2.2.1 "26C. Appeal:- (1) Any person aggrieved by an order of the Registering Authority under sub-rules (3) of (4) of Rule 26A may file an appeal within 60 days from the date of receipt of such order before an officer not below the rank of District Labour Officer notified by Government as Appellate Authority in this behalf: 
      2. 2.2.2 Provided that the Appellate Authority may admit an appeal filed after the expiry of the said period if he is satisfied that the appellant has sufficient cause for not filing the appeal within the said period: 
      3. 2.2.3 Provided further that no such appeal shall be admitted after a period of six months from the date of the order of the Registering Authority appealed against. 
      4. 2.2.4 (2) On receipt of an appeal, the appellate authority may make such enquiries as he deems fit and after giving the employer if any and headload worker an opportunity of being heard and decide the appeal within a period of 30 days from the date of receipt of the appeal. The decision of the appellate authority shall be final".
      5. 2.2.5 9. As per the above rule, the right of appeal has been conferred on "any person aggrieved by an order of the Registering Authority under sub rules 3 or 4 of Rule 26 A". The contention of the third respondent is that the said respondent is a "person aggrieved" under the above provision. The first respondent, Appellate Authority, has also found the above point in favour of the third respondent. The Appellate Authority has concluded the issue by finding that, the third respondent, leader of the trade union of the existing headload workers, who are working in the area, clearly fall within the scope of the expression "person aggrieved" in rule 26 C of the Rules.
      6. 2.2.6 10. The scope and ambit of the expression "any person aggrieved" occurring in rule 26 had come for consideration before a Division Bench of this Court in Jnana Prakasam V. Natarajan (supra). 
    3. 2.3 26A: Registration of Headload workers:- 
      1. 2.3.1 1. Any headload worker may submit his application for registration in form IX to the Registering Authority concerned, with as may additional copies as there are employers or contractors from whom he claims to work.
      2. 2.3.2 2. On receipt of such application the Registering Authority shall issue notice in Form X to the employers or contractors from whom the headload worker claims work and in area where the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 is in operation, to the Chairman, Kerala Headload Workers Welfare Board Local Committee in such area with copy of the application inviting objections, if any, on such application.
      3. 2.3.3 3. After considering the objections, if any, received and after giving an opportunity of being heard, the Registering Authority shall register the name of the headload worker in the Register of Headload Workers, on being satisfied that the headload worker is eligible for registration and communicate the fact to the parties within two weeks of such registration. The Registering Authority shall also issue identity card to the registered headload worker in form XI. If the name is not registered, the Registering Authority shall communicate the fact to the applicant with reasons therefor.
      4. 2.3.4 12. As per sub rule 2 of rule 26A, the Registering Authority is bound to issue notice in form X to the employers or contractors from whom the headload worker claims work and in an area where the Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 is in operation, to the Chairman, Kerala Headload Workers Welfare Board Local Committee. Therefore, the persons who are entitled to a right of hearing in the matter of registration are either the employers or contractors or the Chairman of the Kerala Headload Workers Welfare Board. The Secretary or functionary of the union of headload workers who constitute the pool of unattached workers of the locality has not been conferred a right of hearing. Consequently, they also do not have any right to claim a right of appeal. To the above effect is the dictum in Jnana Prakasam V. Natarajan (supra) referred to above. It is only when registration is granted to a fresh, unattached headload worker that the rights of the other unattached headload workers are affected in any manner. The attached headload worker works within the precincts of the establishment of his employer. The unattached headload workers have no right under the Act to claim the work of a private establishment like that of the first petitioner. It is not in dispute that the first petitioner's establishment is a new establishment. Therefore, the unattached workmen also cannot have a claim that they have been discharging the work of the said establishment at any time. The above being the position, the Appellate Authority seriously erred in finding that the third respondent had a right of appeal against the registration granted to petitioners 2 to 5 as per Ext.P2. The said finding is therefore, set aside.
    4. 2.4 Rajeev V. District Labour Officer [2010 (4) KLT 783] 
      1. 2.4.1 that an attached workman should have an employer. The unattached workmen are to be represented by the Headload Workers Welfare Board, which stands in the position of an employer. The right of an employer to engage his own permanent workers to undertake the headload work of his establishment has been recognised by this Court in 
    5. 2.5 V-Star Creation (P) ltd. District Labour Officer [2012 (2) KLT 883]. 
      1. 2.5.1 On the question as to whether a person seeking registration as headload worker should have prior experience or other qualification, this Court has held in Rajeev V. District Labour Officer (supra) that no such qualification is required. What is sufficient is only that the person is able bodied and is in a position to discharge the duties expected of a headload worker. 
    6. 2.6 Basheer V. Assistnat Labour Officer [2012(3) KLT 892]
      1. 2.6.1 it has been held by this Court that it was not necessary to afford an opportunity of being heard to the existing workers before granting registration to an attached worker. Therefore, the objection taken by the Appellate Authority on the ground that the other headload workers who are described as "aggrieved" were not heard by the Registering Authority before registration was granted as per Ext.P2 also is unsustainable. In view of the above, it is held that Ext.P5 is unsustainable. 
      2. 2.6.2 This writ petition is accordingly allowed. Ext.P5 is set aside. Ext.P2 is restored. 

(2015) 390 KLW 191

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN 

WEDNESDAY, THE 8TH DAY OF OCTOBER 2014/16TH ASWINA, 1936 

WP(C).No. 4077 of 2014 (H)

PETITIONERS

MUHAMMED SHAFEEK KATTEKATTU PARAMBIL, P.O. PULASSERY, PATTAMBI PALAKKAD. (PROPRIETOR, K.P.M. TRADE CENTRE, KOPPAM PALAKKAD.) AND ORS.

RESPONDENTS

1. DISTRICT LABOUR OFFICER, PALAKKAD PALAKKAD. (APPELLATE AUTHORITY UNDER THE HEADLOAD WORKERS ACT) PIN-678001.

2. THE ASSISTANT LABOUR OFFICER PALAKKAD.(REGISTER AUTHORITY UNDER THE HEADLOAD WORKERS ACT). PIN-678001.

3. S. SHEREEF SECRETARY, DESEEYA CHUMATTU THOZHILALI UNION, KOPPAM PULASSERY.P.O., PALAKKAD-679307.

4. HEAD LOAD WORKERS WELFARE COMMITTEE PALAKKAD DISTRICT COMMITTEE, T.B. ROAD, PALAKKAD REPRESENTED BY ITS CHAIRPERSON. PIN-678014. 

SRI.G.GOPAKUMAR, GOVERNMENT PLEADER R4 BY ADV. SRI.C.S. AJITH PRAKASH, SC, KHWWB R3 BY ADV. SRI.BABU KARUKAPADATH R3 BY ADV. SMT.M.A.VAHEEDA BABU R3 BY ADV. SRI.K.A.NOUSHAD R3 BY ADV. SRI.P.U.VINOD KUMAR R3 BY ADV. SRI.KANDAMPULLY RAHUL R3 BY ADV. SRI.MITHUN BABY JOHN R3 BY ADV. SRI.J.RAMKUMAR

JUDGMENT 

This writ petition is filed challenging Ext.P5 order of the first respondent dated 28.1.2013 allowing an appeal filed under 

Rule 26 C of the Kerala Headload Workers Rules, 1981 

(hereinafter referred to as "the Rules" for short). The Rules are issued under the 

Kerala Headload Workers Act, 1978 

(hereinafter referred to as "the Act" for short). As per Ext.P5, the registrations granted to petitioners 2 to 5 under the Act, as well as Ext.P2 identity cards have been cancelled.

2. The first petitioner is the Managing Partner of M/s.KPM Trade Centre, a partnership firm. Since the first petitioner was desirous of having his own permanent workers to attend to the headload work of his establishment, he had submitted applications for the grant of registration to petitioners 2 to 5 who are stated to be his workers. The first petitioner's establishment is a new establishment and Ext.P1 is the Certificate of Registration issued by the Commercial Taxes Department to it. The applications for registration submitted by the petitioners were considered by the second respondent and granted. Thereafter, Ext.P2 identity cards were issued to the workers. It is submitted that one of the workers has expired after the grant of such registration and, that only petitioners 2 to 5 are left. The third respondent is the Secretary of the Trade Union representing the workers of the Headload Workers Pool of the area. He challenged Ext.P2 registration in an appeal filed under rule 26 C of the Rules. As per order dated 4.10.2013, the Appellate Authority directed the registration to be kept in abeyance. The said order is Ext.P3. The petitioners challenged Ext.P3 in W.P.(C) No.24457 of 2013. The said writ petition was disposed of by Ext.P4 judgment directing the appeal filed by the third respondent to be disposed of within a period of one month. The registration granted to the petitioners was directed to continue. It was thereafter that the appeal was heard by the first respondent and allowed by Ext.P5 as stated above. This writ petition was admitted on 11.2.2014 and an interim order of stay granted against Ext.P5 is still in force.

3. According to Adv.Sri.Aravindkumar Babu, who appears for the petitioners, the appeal itself was not maintainable before the first respondent for the reason that the third respondent is not an aggrieved person under rule 26 C of the Rules. It is contended that, the third respondent could have had any grievance only if a fresh headload worker was sought to be granted registration as an unattached worker. The petitioners being permanent workers in a private establishment, stand on an entirely different footing. They discharge only the work allotted to them by their employer, in their capacity as permanent workers of the establishment. Since, the employer has the freedom to get the work of his establishment done through workers of his choice, he had sought for registration of his workers under the Rules.

4. In such a situation, the third respondent is not a person coming within the scope of "person aggrieved" mentioned in the Rule. On the merits also, according to the counsel Ext.P5 is unsustainable for the reason that, the fourth respondent, Headload Workers Welfare Committee, had been served with notice but had not responded to the same. The fourth respondent had also not filed any appeal against Ext.P2. Therefore, the said respondent cannot be heard to contend that, no notice was received by him. Reliance is placed on a number of decisions of this Court also.

5. Adv.Vaheeda Babu appears for the third respondent. According to the counsel, the second respondent had not proceeded to grant Ext.P2 registration, in compliance with the procedure stipulated by the Rules. Sub rule 2 of rule 26 A mandates that, notice should be issued to the fourth respondent, objections, if any, submitted should be considered and only thereafter a registration could have been granted. Reliance is placed on the decision of this Court in 

Jnana Prakasham v. Natarajan (2002(1) KLT 39) 

in which, a Division Bench of this Court has held that the existing headload workers in a locality are persons aggrieved by the grant of registration to fresh headload workers. Induction of fresh headload workers would eat into the earnings of the existing headload workers and cause substantial prejudice to their interests. In view of the above, according to the counsel, this Court has held that the existing headload workers are also persons coming within the scope of the expression "person aggrieved" employed by rule 26 A. It is the contention of the counsel for the third respondent that, the second respondent had not made proper enquiries before granting registration to the workers under the first respondent. It is alleged that the second petitioner is none other than the father of the first petitioner and therefore, had a proper enquiry been conducted, it is pointed out that, the said fact would have been brought to light.

6. Ext.R3(a) objections had been submitted by the third respondent to the proposal to grant registration to petitioners 2 to 5. However, the said objections were not considered. Thereafter, though the second respondent had recommended cancellation of the registration granted, the same was rejected by the District Labour Officer. The third respondent had thereupon, approached this Court challenging the said order by filing W.P.(C) No.18250 of 2013. As per Ext.R3(b) judgment, the said writ petition was disposed of, holding that the third respondent had an alternative remedy of filing an appeal before the first respondent. It was pursuant to the said direction that the appeal was filed. Therefore, it is contended that the appeal was perfectly maintainable. The Appellate Authority has found even on the merits that, the registration granted to petitioners 2 to 5 was bad and set aside the same.

7. Adv.C.S.Ajith Prakash appears for the fourth respondent. A separate counter affidavit has been filed by the said respondent. It is the contention of the fourth respondent that, no notice as mandated by sub rule 2 of rule 26A of the Rules was received by the fourth respondent in respect of the applications for registration submitted by petitioners 2 to 5. The inward register maintained by the fourth respondent would show that, no such communication had been received. It is also pointed out that on the application for registration that was submitted on 5.6.2013, notice had been issued on the next day itself, 6.6.2013, evidencing undue haste on the part of the Registering Authority. The fourth respondent, being the statutorily empowered authority to safeguard the interests of the pool workers, was entitled to be granted an opportunity to submit objections. The said opportunity not having been afforded, it is contended that the Appellate Authority has rightly set aside the registration granted as per Ext.P2.

8. Heard. The facts in this case are not in dispute. There is no dispute that the third respondent is the Secretary of the Union of the headload workers who undertake the headload work in the area constituting pool No.10 A and 10B of Koppam. The workers of the pool are not attached to any employer or contractor. The establishment of the first petitioner is a new establishment that wanted to start operations. For the purpose of attending to the headload work of the establishment, applications had been submitted for registering petitioners 2 to 5, permanent workers, under rule 26 A of the rules. The said applications were enquired into and allowed by the second respondent, pursuant to which Ext.P2 registration cards were also issued. The third respondent challenged the proceedings of the second respondent by filing an appeal before the 1st respondent under Rule 26 C of the Rules. 

Rule 26C of the Rules reads as follows: 

"26C. Appeal:- (1) Any person aggrieved by an order of the Registering Authority under sub-rules (3) of (4) of Rule 26A may file an appeal within 60 days from the date of receipt of such order before an officer not below the rank of District Labour Officer notified by Government as Appellate Authority in this behalf: 

Provided that the Appellate Authority may admit an appeal filed after the expiry of the said period if he is satisfied that the appellant has sufficient cause for not filing the appeal within the said period: 

Provided further that no such appeal shall be admitted after a period of six months from the date of the order of the Registering Authority appealed against. 

(2) On receipt of an appeal, the appellate authority may make such enquiries as he deems fit and after giving the employer if any and headload worker an opportunity of being heard and decide the appeal within a period of 30 days from the date of receipt of the appeal. The decision of the appellate authority shall be final".

9. As per the above rule, the right of appeal has been conferred on "any person aggrieved by an order of the Registering Authority under sub rules 3 or 4 of Rule 26 A". The contention of the third respondent is that the said respondent is a "person aggrieved" under the above provision. The first respondent, Appellate Authority, has also found the above point in favour of the third respondent. The Appellate Authority has concluded the issue by finding that, the third respondent, leader of the trade union of the existing headload workers, who are working in the area, clearly fall within the scope of the expression "person aggrieved" in rule 26 C of the Rules.

10. The scope and ambit of the expression "any person aggrieved" occurring in rule 26 had come for consideration before a Division Bench of this Court in Jnana Prakasam V. Natarajan (supra). 

After considering the language of rule 26C, this Court has held in paragraph 9 of the said judgment as follows: 

9. The decision in this Appeal will rest upon the interpretation given to the words "any person aggrieved" in R.26C(1). Going by the literal meaning, any person who considers himself aggrieved will be able to file an appeal. With regard to the question whether the existing workmen can be said to be persons aggrieved by the grant of registration to fresh workmen in an area, the learned single Judge was of the view that they cannot be said to be persons aggrieved. The words "persons aggrieved" have been read down only to include persons who have a right of hearing at the time of registration of the workmen. Such persons are the applicants and the employers. In relation to registration of attached workmen who are employed in a particular shop, third parties cannot have any right of hearing or any right of appeal. In the case of registration of workmen in a particular area, at the first instance, "aggrieved persons" will include only the applicants and the contractors. But when it comes to the case of application by new workmen in an area where there are already a set of workmen, the interpretation given by the learned single Judge will not be correct. If in an area fresh workmen also enter, that will result in sharing the cake by more mouths resulting in depletion of the share of existing workmen. This will affect the livelihood of existing workmen which is considered as a concomitant of the right of life guaranteed under Art.21 of the Constitution of India. 

(emphasis supplied) 

11. The above passage shows that, in the case of attached workers the words "persons aggrieved" have been read down only to include the applicants and their employers or contractors. They are the persons to whom a right of hearing has been conferred by Rule 26A of the Rules. In relation to the registration of attached workmen who are employed by a particular person, it has also been held that there cannot be any right of hearing or right of appeal to third parties. Rule 26A is also relevant in the above context. The said Rule reads as under: 

26A: Registration of Headload workers:- 

1. Any headload worker may submit his application for registration in form IX to the Registering Authority concerned, with as may additional copies as there are employers or contractors from whom he claims to work.

2. On receipt of such application the Registering Authority shall issue notice in Form X to the employers or contractors from whom the headload worker claims work and in area where the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 is in operation, to the Chairman, Kerala Headload Workers Welfare Board Local Committee in such area with copy of the application inviting objections, if any, on such application.

3. After considering the objections, if any, received and after giving an opportunity of being heard, the Registering Authority shall register the name of the headload worker in the Register of Headload Workers, on being satisfied that the headload worker is eligible for registration and communicate the fact to the parties within two weeks of such registration. The Registering Authority shall also issue identity card to the registered headload worker in form XI. If the name is not registered, the Registering Authority shall communicate the fact to the applicant with reasons therefor.

12. As per sub rule 2 of rule 26A, the Registering Authority is bound to issue notice in form X to the employers or contractors from whom the headload worker claims work and in an area where the Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 is in operation, to the Chairman, Kerala Headload Workers Welfare Board Local Committee. Therefore, the persons who are entitled to a right of hearing in the matter of registration are either the employers or contractors or the Chairman of the Kerala Headload Workers Welfare Board. The Secretary or functionary of the union of headload workers who constitute the pool of unattached workers of the locality has not been conferred a right of hearing. Consequently, they also do not have any right to claim a right of appeal. To the above effect is the dictum in Jnana Prakasam V. Natarajan (supra) referred to above. It is only when registration is granted to a fresh, unattached headload worker that the rights of the other unattached headload workers are affected in any manner. The attached headload worker works within the precincts of the establishment of his employer. The unattached headload workers have no right under the Act to claim the work of a private establishment like that of the first petitioner. It is not in dispute that the first petitioner's establishment is a new establishment. Therefore, the unattached workmen also cannot have a claim that they have been discharging the work of the said establishment at any time. The above being the position, the Appellate Authority seriously erred in finding that the third respondent had a right of appeal against the registration granted to petitioners 2 to 5 as per Ext.P2. The said finding is therefore, set aside.

13. The other question is whether the Appellate Authority was justified in interfering with the registration granted by the second respondent, on the merits. The first respondent has found that, the registrations granted to petitioners 2 to 5 were without complying with the mandatory stipulations contemplated by rule 26 A. The first respondent has found that the second respondent had acted in "unnecessary haste" and was in a an "imbalanced position", while dealing with the matter. According to the Appellate Authority, the applications received from petitioners 2 to 5 on 5.6.2013 received the immediate attention of the second respondent in that, notice is seen to have been issued in form X on 6.6.2013. I do not find anything wrong in the Registering Authority's action of issuing notice on the next day itself. The conduct also cannot justify a conclusion that the authority had acted in undue haste for the reason that, the notice was issued only on the next day. The Appellate Authority has further omitted to notice that, the hearing was scheduled only on 17.6.2013. The fixing of 17.6.2013 cannot be said to be indicative of any unnecessary haste on the part of the Registering Authority. The Registering Authority has, when examined during the course of the appellate proceedings, as extracted in Ext.P5 order, stated that, in the absence of appearance of the person to whom notice had been issued, he had visited the establishment of the first petitioner and satisfied himself of the entitlement of petitioners 2 to 5 to be granted registration. There is nothing on record to justify a conclusion that the above statements were without any basis, as sought to be made out by the Appellate Authority. It is true that, the fourth respondent has taken up a contention that no notice of the proceedings under rule 26 A (2) was received by the said authority. The fourth respondent also appears to have made available to the Appellate Authority, the Inward Register maintained in their office, to support the contention that, no such notice was received. The Appellate Authority has placed implicit reliance on the said Inward Register and has proceeded to conclude that, no notice was issued by the Registering Authority as contemplated by rule 26(2).

14. The above reasoning is fallacious for the reason that, when the Registering Authority has put forward a contention that notice in form X had been issued to the fourth respondent, the proper document to have been verified by the Appellate Authority was the Despatch Register of the Registering Authority to ascertain whether such notice was in fact issued or not. This is for the reason that, as per section 27 of the General Clauses Act, 1897 service of notice is presumed to be proper if a properly addressed cover with the requisite stamps affixed thereon is posted properly. Quite strangely, the Appellate Authority has failed to address itself to the issue on the above lines. Consequently, the Appellate Authority has fallen into an error and concluded that no notice was issued under rule 26A(2), for the reason that the inward register of the fourth respondent does not show the receipt of such a notice. The said reasoning cannot be accepted in the absence of any evidence as to whether the notice had in fact been dispatched by the Registering Authority. It is also pertinent to note that the fourth respondent had not raised any complaint against the grant of Ext.P2 registration, at any time, before any authority. Nor has the fourth respondent put forward a contention that, it had not received the notice, at any time before the appeal was preferred, by the third respondent. The attempt of the fourth respondent in raising objections against the registration granted can, therefore, be only construed as an attempt to prop up the case pleaded by the third respondent. Therefore, the conclusion arrived at by the Appellate Authority that the procedure stipulated by rule 26A(2) was not complied with, before issuing Ext.P2 to petitioners 2 to 5 is unsustainable. 

15. The tone and tenor of the order of the Appellate Authority, as well as the language employed, betray in general, a strong prejudice against the second respondent. The unsavory remarks as well as the snide references made to the Registering Authority in the order, to say the least, can only be described as, in bad taste.

16. The Appellate Authority has found fault with the Registering Authority for stating that, since the establishment was a new one, it had not maintained the records contemplated by the Kerala Headload Workers Act, 1978. The Appellate Authority has further found fault with the Registering Authority for not having taken the statements of the aggrieved headload workers. The said objections are also not sustainable in view of the dictum laid down by this Court in various decisions on the point. It has been recognised by this Court in 

Rajeev V. District Labour Officer [2010 (4) KLT 783] 

that an attached workman should have an employer. The unattached workmen are to be represented by the Headload Workers Welfare Board, which stands in the position of an employer. The right of an employer to engage his own permanent workers to undertake the headload work of his establishment has been recognised by this Court in 

V-Star Creation (P) ltd. District Labour Officer [2012 (2) KLT 883]. 

On the question as to whether a person seeking registration as headload worker should have prior experience or other qualification, this Court has held in Rajeev V. District Labour Officer (supra) that no such qualification is required. What is sufficient is only that the person is able bodied and is in a position to discharge the duties expected of a headload worker. 

In 

Basheer V. Assistnat Labour Officer [2012(3) KLT 892]

it has been held by this Court that it was not necessary to afford an opportunity of being heard to the existing workers before granting registration to an attached worker. Therefore, the objection taken by the Appellate Authority on the ground that the other headload workers who are described as "aggrieved" were not heard by the Registering Authority before registration was granted as per Ext.P2 also is unsustainable. In view of the above, it is held that Ext.P5 is unsustainable. 

This writ petition is accordingly allowed. Ext.P5 is set aside. Ext.P2 is restored.