Judgment :- S. Sankarasubban, J. These review petitions are filed against the common judgment in W. A. Nos. 2857 97 and 289/97. The appellants are the review petitioners. The appellants are conducting Rice Mills. Their case was that Headload workers who belonged to respondents 3 to 6, were obstructing their work and they wanted police protection. When they approached this Court earlier for police protection, this Court granted police protection subject to the right of the Union to take the dispute before the District Labour Officer, Perumbavoor under the Headload Workers Act. The original authority as well as the appellate authority found that the appellants had engaged 29 headload workers belonging to the union of the respondents and the authorities directed that they should be engaged for the purpose of unloading by the appellants. Challenging the orders of the statutory authorities, the appellants filed Original Petitions. The decisions of the statutory authorities were confirmed by the learned single Judge. Challenging that judgment, these Writ Appeals were filed. The Writ Appeals were dismissed by the common judgment dated 16.12.87. In the W.A. the Division Bench after considering the order of the statutory authorities confirmed the findings of the authorities that the appellants did not engage any workmen for the purpose of unloading. It also agreed with the findings that the 29 workers of the respondents unions are engaged for unloading by the appellants. This was on the basis of Exts. P15 and P16. The appellants contended before the Division Bench that the alleged workmen had no right under the Headload Workers Act and hence the appellants did not have any obligation to engage them. This is on the basis that the scheme under the Headload Workers Act had not been extended to the area where the Mills are situated. This aspect was considered in paragraph 6 of the judgment in the appeal. The Bench referred to S.21(7) and held that their engagement had to be continued until they were terminated in accordance with law. In the judgment also we directed the disbursement of Rs. 2 lakhs, which was deposited with the Joint Labour Commissioner towards wages for 29 workmen. It is. the above judgment that is sought to be reviewed. The learned senior counsel for the petitioners submitted that he urged the contentions before the Division Bench that the workmen concerned were not employed by the appellants.
2 lakhs, which was deposited with the Joint Labour Commissioner towards wages for 29 workmen. It is. the above judgment that is sought to be reviewed. The learned senior counsel for the petitioners submitted that he urged the contentions before the Division Bench that the workmen concerned were not employed by the appellants. At best it can be stated that they were only engaged. There was no contract of service but only contract for service. He also submitted that there are many decisions of this Court and the Supreme Court, which distinguished the 'persons engaged' and the 'persons employed'. His argument was that the headload workers who are now directed by the Court to be engaged by the appellants cannot be said to be in the service of the appellants. These headload workers are working not only for the appellants but for other Rice Mill Owners also. Hence the appellants cannot be compelled to employ them. Further he submits that there is no employee-employer relationship between the appellants and the alleged workmen. Before we discuss further, we wish to state that there is a mistake in the judgment regarding the total amount in deposit. Total amount of deposit is Rs. 3.07 lakhs. So also some workers have filed C.M.P. No. 2956/97 stating that they are giving up their claims against the appellants. This was omitted to record earlier. According to us, the amount of Rs. 2 lakhs mentioned the judgment is not correct. It is corrected as Rs. 3.07 lakhs. So also C.M.P. No. 2437/97 is allowed recording that the petitioners in the CMP have given up their claims against the appellants. The main argument advanced by the counsel for the petitioners is that this court has not looked into certain decisions cited by him. Learned counsel referred to the decision in E.S.I. Corporation v. M.C. Punnoose, 1980 KLT 476, in E.S.I. Corporation v. Ayurvedic I.C.P. 1979 KLT 897, Regional Director, E.S.I. V. P.K. Mohammed P. Ltd. 1995 (2) KLJ 515, in M/s. Purl Urban Co-operative. Bank v. Madhusudan Sahu & Ann (1992) 3. SCC 323, in Francis v, Kerala Headload Workers Welfare Fund, 1997 (2) KLT 883 and in .regional-director, E.S.I, Corporation, v. P.R. Narahari Rao, 1986 LAB 1C 1981. Of these 1986 Lab.
Bank v. Madhusudan Sahu & Ann (1992) 3. SCC 323, in Francis v, Kerala Headload Workers Welfare Fund, 1997 (2) KLT 883 and in .regional-director, E.S.I, Corporation, v. P.R. Narahari Rao, 1986 LAB 1C 1981. Of these 1986 Lab. I.C. 1981, -1995 (!) KLJ 515,1979 KLT 897 and 1980 KLT 476 deal with the scope of definition of employees under the Employees State Insurance Act. In those cases it was stated that unless the worker was exclusively working in the establishment of the employer, he cannot be said to be an employee, coining within the definition of the Employees State Insurance Act. The decision in 1992 (3) SCC 323 relating to the case of contract for services. There a goldsmith was being engaged by the Bank for the purpose of testing gold ornaments offered to be pledged to the Bank. The Supreme Court found that the Bank have no control over how the work is to be done and hence there was no employer-employee relationship. 3. But in this case, we are not concerned with such position. Learned counsel contended that She use of the word 'employment' in the judgment is not correct. It may not be correct in the strict sense. But what the respondents contend is that they are headload workers and they had been engaged by the appellants. "Headload worker" defined under S.2(m) of the Headload Workers Act is as follows: "2(m) "headload worker" means a person engaged directly or through a contractor in or for an establishment whether for wages or not for loading or unloading or carrying on head or person or in a trolly any article or articles in or from or to a vehicle or any place in such establishment, and includes any person not employed by any employer or contractor but engaged in the loading or unloading or carrying on head or person or in a trolly and article or articles for wages, but does not include a person engaged by an individual for domestic purposes". The word 'principal employer' is defined in S.2(p) of .the Act. It is as follows: "2(p) "principal employer" means an employer who engaged a headload worker by or through a contractor in establishment". Thus, the Headload workers Act has given importance of the word 'engagement' than to 'employment'. Dispute is defined in S.2(h). There the terminate on or discharge of headload workers are included.
It is as follows: "2(p) "principal employer" means an employer who engaged a headload worker by or through a contractor in establishment". Thus, the Headload workers Act has given importance of the word 'engagement' than to 'employment'. Dispute is defined in S.2(h). There the terminate on or discharge of headload workers are included. Further the concept under the Headload Workers Act does not mean that the headload workers should be under the exclusive services of the employer. That is what Ext. P15 and P16 states. These workers are engaged for the purpose of unloading and whenever there is work for unloading, these workers have to be engaged. In the decision reported in Francis v. Kerala Headload Workers Welfare Fund, 1997 (2) KLT 883 also this position is highlighted. It is stated there as follows: " A headload worker attached to an establishment is covered by the definition of headload worker irrespective of the fact that he is directly employed by a employer or through a contractor." In that case this Court held that petitioners' private business such as timber business or shop will not come within the term 'establishment'. But here the facts are different. A31 the proprietors who have Rice Mill in that area agreed with the Unions to engage their headload workers. This is a particular situation only avail able in the State of Kerala in the wake of the promulgation of the Kerala Headload Workers Act. 4. In the above view of the matter, we do not find anything wrong in our judgment by which the orders of the statutory authorities are upheld. The contention regarding the life of Exts. P15 and P16 was considered by us in the judgment and Hence it is not necessary to consider the same, 5. The last paragraph i o the judgment will be modified as follows: During the pendency of the appeals, the appellants in both the appeals together deposited Rs. 3.07 lakhs with the Regional Joint Labour Commissioner. As per the order of the statutory authorities the appellants are bound to engage 29 workmen. But of these 19 workmen who are petitioners in C.M.P. 2437/97 in W. A. 295/97 have given up their claims against the appellants. Hence the appellants are bound to give engagement to the balance 10 workers for the purpose of unloading as per Ext. P16.
But of these 19 workmen who are petitioners in C.M.P. 2437/97 in W. A. 295/97 have given up their claims against the appellants. Hence the appellants are bound to give engagement to the balance 10 workers for the purpose of unloading as per Ext. P16. The 10 workmen are also entitled to withdraw the arrears of wages due to them from the date of the direction to re-engage them. There will be a direction to the Regional Joint Labour Commissioner to determine the amount due to the 10 workmen. With the above modifications, the Review Petitions are dismissed.