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1988 DIGILAW 272 (KER)

KERALA VYAPARI. v. Y. WING VS STATE OF KERALA

1988-06-27

G.VISWANATHA.IYER

body1988
Judgment :- 1. By consent of parties the Original Petition itself is taken up for hearing. The petitioners claims to be the youth wing of the Kerala Vyapari Vyavasayi Samithy, a State organisation of merchants in Kerala. The merchants in Pathanamthitta District are affected by a circular Ext. P-2 dated 1-5-1988 issued by two unions, namely respondents 4 and 5 by which they have intimated the merchants and owners of vehicles that the collection of 'bonus' will commence from 15-5-1988. The amount of bonus payable is mentioned as Rs. 60 per lorry, Rs. 50/- per DCM Van, Rs. 40/- per Tempo Van and Rs. 25/-for sales van. 2. Goods from various parts of Tamil Nadu and other parts of Kerala are brought to Pathanamthitta District by vans and lorries. The charges of loading and unloading of goods in such vehicles are being paid by the merchants to the workers concerned at the rates prescribed in Ext.P-1 which is an agreement entered into between the merchants and the workers' unions on the intervention of the Deputy Labour Officer, Pathanamthitta. The demand as per Ext.P-2 is over and above this demand made by the workers and is to be fastened on owners of vehicles. The petitioner proceeds in the Original Petition on the basis that the bonus as per Ext.P-2 has to be paid every time and at every place in Pathanamthitta District when a vehicle unloads goods. The petitioner points out that if a lorry which may bring goods to 5 different merchants within Pathanamthitta District unloads the goods at those 5 different places, the lorry owner will have to pay the union in all those places at the rate of Rs. 60/- with the result he will have to make payment of a total of Rs. 300/- even on a single day. It is pointed out that this levy on the vehicle owners is totally unauthorised and illegal and is but part of the harassment of merchants and vehicle owners by the workers. The petitioner has made a representation to the District, Collector about this illegal exaction, by Ext.P-3 representation, but nothing is forthcoming out of their representation with the result the petitioner has been constrained to file this Original Petition. The petitioner has made a representation to the District, Collector about this illegal exaction, by Ext.P-3 representation, but nothing is forthcoming out of their representation with the result the petitioner has been constrained to file this Original Petition. It is inter alia pointed out in Ext.P-3 that a driver who has no provision to pay bonus will nevertheless be constrained to make payment in each point of delivery. If he refuses to pay, intimidation will follow. Even small traders are not exempted. They are also subjected to this levy. It is also pointed out that the vehicle cannot escape from this levy by making payment once and it will be followed by demands everywhere. Such a levy is illegal and has no sanction in law. Workers are only entitled to the wages from the merchants for the work done. 3. The petitioner's apprehension is that if this illegal exaction is to be made, vehicles will remain reluctant to make trips and carry goods to places in Pathanamthitta which will adversely affect the interests of the trade therein and cause harassment and hardship to the merchant community. The youth wing has therefore taken up this issue to this court with prayer for directions to respondents 2 and 3 to give protection from the workers belonging to respondents 4 and 5 union and to stop collection of the amount mentioned in Ext.P-2. 4. There is a tentative counter affidavit filed by the 4th respondent. According to them since 1969 a custom of payment of bonus to loading and unloading workers by the vehicle owners has developed in Pathanamthitta. The vehicle owners pay only once in a year, and it is said to be according to the decision of a Samithy consisting of the District Collector, Labour Officer, representatives of the Unions and the Merchants' association. It is significant to note that the vehicle owners are not party to this so called agreement. Payments once in an year to one union is all that is insisted. Exts.R5 (a) and (b) are produced to show that such collections had been made in the years 1983 and 1987. When there was a complaint of excess collection in 1986 the District Collector convened a conference to settle the disputes. Payments once in an year to one union is all that is insisted. Exts.R5 (a) and (b) are produced to show that such collections had been made in the years 1983 and 1987. When there was a complaint of excess collection in 1986 the District Collector convened a conference to settle the disputes. The petitioner cannot therefore complain against the collection nor are they entitled to bring such an Original Petition as they do not represent the merchants, but only children of some merchants. 5. The counter affidavit of the 5th respondent also questions the right of the petitioner to file such an Original Petition. According to them collection of bonus from goods carriers was customary, but had started in the year 1976 and not in 1969 as alleged by the 4th respondent. It was known as delivery bonus. There was a conference convened by the District Collector in which the complaint of excessive collection made in 1986 was investigated and the rates were reduced. Ext.R4 (b) produced along with 4th respondents' counter affidavit is stated to be the minutes of the conference so held. The 5th respondent also reiterates that the bonus is collected only once in a year. If the petitioner has any grievance they must put it forward before the Labour Officer, Pathanamthitta and get a conciliation conference convened. 6. Despite the fairly elaborate and lengthy counter affidavits of respondents 4 and 5 as also arguments addressed at the bar I have not been able to discern the existence of any legal sanction for this levy from the vehicle owners. Both Mr. Rajasekharan Nair and Mr. M. K. Damodaran appearing for respondents 4 and 5 were at pains to convince that the levy is justified by the decision at the conference convened by the Collector. However, the levy in question is made on vehicle owners who are not parties to the conference convened by the Collector. It was only the merchants who were party. Any decision taken at such a conference to which the vehicle owners were not parties cannot form the foundation for any demands from them even assuming that such a levy is liable to be visited upon the merchants. Any such levy or demand has to be backed by legal sanction. It was only the merchants who were party. Any decision taken at such a conference to which the vehicle owners were not parties cannot form the foundation for any demands from them even assuming that such a levy is liable to be visited upon the merchants. Any such levy or demand has to be backed by legal sanction. Apart from the decision at the Collector's conference, the pleadings proceeded as if such a levy is sanctioned by custom, but even on that there is difference between respondents 4 and 5. While the 4th respondent would state that the collection has been in existence since 1969, according to the 5th respondent the collection started in 1976. I do not think any custom can be spelled out from the pleadings. Even otherwise and even assuming that this collection was being made for a few years past, that does not give rise to a continuing obligation on the part of the vehicle owners to make payment to the Unions. Such collection which is likely to be backed by intimidation and threat, is most obnoxious in its nature. There is no case that any service is being rendered by the Unions or their workers to the vehicle owners. If so, the demand is for an ex-gratia payment. The levy and demand are therefore not justified by law or by contract or custom. Since any such demand is most likely to be enforced by muscle power with threat and intimidation, it is only proper that respondents 2 and 3 intervene and prevent such collections. No doubt, voluntary payments cannot be stopped. But a demand backed by threat or intimidation should certainly not be permitted. Such illegal exactions from members of the public are totally opposed to the rule of law which informs the provisions of the Constitution. The petitioner which is interested in the merchant community who are likely to be affected by this exaction on the vehicle owners has certainly the necessary locus standi for filing this petition. 7. Respondents 2 and 3 are therefore directed to make enquiry into the complaints made in Ext.P-3 and to ensure that collection of the amounts specified in Ext.P-2 is not enforced. The Original Petition is disposed of with the above directions.