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2006 DIGILAW 819 (KER)

G. Jayaprakash v. Govt. of Kerala

2006-12-01

S.SIRI JAGAN, V.K.BALI

body2006
Judgment :- Siri Jagan, J. This writ appeal is filed challenging the judgment of the learned Single Judge in O.P.No. 13451/1996 wherein the learned Single Judge upheld Exts. P3 and P5 orders of the original and appellate authorities under the Kerala Headload Workers Act, whereby the rights of respondents 6 and 7 Unions to claim "attimari work" in the Kollam District Depot of the Kerala State Civil Supplies Corporation was upheld. The appellants are the petitioners who are some of the regular workers of the Corporation as also office bearers of the Union of the regular workers. The brief facts necessary for the disposal of the writ appeal are as follows. 2. The Kerala State Civil Supplies Corporation (for short "the Corporation) constructed a new godown in its Kollam District Depot at contonment area, wherein there were already one Maveli store, four tanks for palmoline collection and one godown, which started functioning on 20-4-1996. Before the construction of the new godown, the depot was functioning as a receiving center for food articles for sale during festival seasons like Onam etc. When the new godown was constructed, the provision articles stocked at the Kikikolloor godown and the levy sugar stocked in the port godown of the State Warehousing Corporation were shifted to the new godown. The Corporation has its own employees for doing the loading and unloading work. These headload workers are duly registered under the Act and Rules and have been regularly doing the loading and unloading work of the depot from the year 1985. In 1991, various trade unions including respondents 6 and 7 raised disputes claiming work in the depot which ended in Ext. P1 settlement as per which members of respondents 6 and 7 were also allotted headload work in certain proportions, which arrangement has been working out successfully ever since Ext. P1 agreement. When the new godown started functioning, the headload workers of the area claimed stacking charges, which is popularly known as "Attimari" wages. As we understand it the process of 'atti' is to stack the goods which are brought from the godown and kept near the vehicle which is to carry the same, on to the vehicle and the process of 'mari' is to stack the goods brought in a vehicle on the ground, from where it has to be further carried into the godown. The regular headload workers of the Corporation opposed the practice of giving "attimari" work to the unattached headload workers of the area. This led to a dispute which was adjudicated by the District Labour Officer, Kollam and passed an order wherein he held that there were a set of workers in the area who were entitled to be engaged exclusively for "atti" and "mari" and they have a right to do the said work at the Kerala State Civil Supplies Corporation, Kollam depot in accordance with the existing convention within the Kollam municipal area to the exclusion of other regular workers of the Corporation. The order passed by the District Labour Officer under Section 21(4) of the Kerala Headload Workers Act is Ext. P3. The appeal filed by the appellant herein before the Regional Joint Labour Commissioner was dismissed by Ext. P5 order. Exts. P3 and P5 orders were challenged by the regular headload workers of the Kerala Civil Supplies Corporation, Kollam depot in the above said original petition, which was dismissed by the learned Single Judge on the ground that the authorities, after conducting an enquiry, found that members of respondents 6 and 7 Unions were doing the "attimari work" continuously and that they are registered workers under the Headload Workers Act, which finding is a concurrent finding of fact by two authorities and there is no ground to interfere with the same under the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. The said decision is under challenge in this writ appeal. 3. We heard counsel on both sides. 4. Since the main question involved in this case is as to whether respondents 6 and 7 Unions are entitled to do "attimari work" in the depot of the Corporation in exclusion of other regular workers, we browsed through the Kerala Headload Workers Act, Kerala Headload Workers Rules and the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 which govern the employment of headload workers in notified areas in the Kerela State. We could not find any expression by name "atti" or "mari" or "attimari" in the Act, Rules and the Scheme. Going by the Act, Rules and Scheme, we find only one expression, namely, headload worker. We could not find any expression by name "atti" or "mari" or "attimari" in the Act, Rules and the Scheme. Going by the Act, Rules and Scheme, we find only one expression, namely, headload worker. Headload worker is defined thus in Section 2(m) of the Act thus: "(m) "Headload worker" means a person engaged or employed 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 any article or articles for wages, but does not include a person engaged by an individual for domestic purposes." 5. When an employer wants to load or unload articles, he only has to employ workers for loading and unloading. We are at a loss to understand an intermediate process by name "atti" or "mari" in headload work. Apparently, this system has been evolved by a set of workers' unions de hors the provisions of the Act, Rules and Scheme. Whether there was any such convention as held by the authorities below in a particular area or not, certainly such an additional work is not contemplated by the Kerala Headload Workers Act, Rules and Scheme. Going by the claims of respondents 6 and 7 Unions, the employer would have to compulsorily avail of the services of two sets of workers, namely, their regular headload workers and workers of 6th and 7th respondents' unions. The employer will also have to shell out two different sets of wages, one for their regular workers for doing loading and unloading work and the other for the so called "attimari" work. Such a procedure is not contemplated by law as envisaged in the Kerala Headload Workers Act, Kerala Headload Workers Rules and the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme. Such a procedure is not contemplated by law as envisaged in the Kerala Headload Workers Act, Kerala Headload Workers Rules and the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme. In so far as law does not provide for such a dichotomy in the matter of employing headload workers in any area, the fact that some unions of workers in the area have, by force or otherwise, brought about a convention of employing them for "attimari work" in addition to the regular headload workers, the same cannot have the support and backing of law. Therefore, such a finding of fact by the District Labour Officer and Regional Joint Labour Commissioner under the Headload Workers Act is patently against the Headload Workers Act, Rules and Scheme and therefore perverse. It is now common knowledge that some unions with muscle power demands "Nokku kooli" (wages for watching the loading and unloading). These are all practices which would lead to anarchy and unrest in trades and industries. People have even begun to regard headload workers with fear because of the physical threat posed by them when such illegal demands are not acceded to by the employers and the public. This attitude of 'might is right' is what is reflected in these so called conventions or practices initiated and regularised with the help of labour officers who themselves may be obeying orders from political power centres. At one time, writ petitions seeking police protection against high handed action by certain unions when their demand for such 'attimari' wages are resisted, were not uncommon in this Court. The authorities under the Act, Rules and Scheme cannot recognise any sort of work other than what has been contemplated under the Act, Rules and Scheme in the name of some convention or practice existing in a particular area. We are also inclined to hold that such compulsory extraction of wages for such work not contemplated under the Act, Rules and Scheme would even amount to violation of the fundamental rights of the employers, besides affecting the right to work of the regular workers of the employers. 6. We are also inclined to hold that such compulsory extraction of wages for such work not contemplated under the Act, Rules and Scheme would even amount to violation of the fundamental rights of the employers, besides affecting the right to work of the regular workers of the employers. 6. In that connection, it must be noted that the result of payment of such double wages to two sets of workers for the same work of loading and unloading from the same vehicle to the same godown and vice versa would necessarily tell upon the ultimate price of the articles which are intended to be sold to the people at large, apart from the unrest among the regular workers. Naturally, either the people who buy them or the Government who supplies the same through the ration shops would have to necessarily incur extra expenses in view of this system of payment of double wages for the same work because these wages would also form part of the ultimate price of the articles loaded or unloaded . In fact, employers often complain that these workers demand as of right 'attimari' wages even without doing the work, by physical threat. Instances were common even in the case of shifting of houses by people, when these attimari workers claim "attimari wages" without doing actual work. We are of opinion that that would ultimately tell upon the economy of the State itself, which already is in a precarious state going by the financial position of the State as is evident from the submissions being made before this Court on behalf of the Government when matters relating to delay in undertaking development works and payment of money to contractors for work done for the Government come up for consideration. It would be totally unfair to saddle the Government or the people with such additional expenses for no extra work in the name of "attimari". Therefore, we feel that it is high time that the authorities put an end to such practices which is beyond the scope of the Act, Rules and the Scheme for the welfare of the State itself. 7. Therefore, we feel that it is high time that the authorities put an end to such practices which is beyond the scope of the Act, Rules and the Scheme for the welfare of the State itself. 7. In a humorous vein, we may also note that the word 'attimari' in Malayalam, literally translated into English means 'subvert' or 'sabotage' , and that the process of demanding 'attimari work' as of right in fact 'subverts' or 'sabotages' the intention of the Act, Rules and the Scheme. 8. Naturally, the conclusion of the above discussions would be that the Kerala State Civil Supplies Corporation is liable to pay wages for headload work only and not separate wages also for "atti" or "mari" in the process of loading and unloading of articles to and from its godowns. The members of respondents 6 and 7 unions have no manner of right to insist that they are exclusively entitled to do the so called "attimari work" and claim wages for the same. All the right they have is only to do the headload work like other workers in accordance with Ext. P1 settlement and nothing more. The so called "attimari work" is an artificial creation by certain unions having muscle power to extract extra work or money from hapless employers who are unable to resist the might of the unions who may also have political clout. If such transgressions are given legal backing as done by respondents 3 and 2 by passing Exts. P3 and P5 that would lead to unrest among other workers, if not anarchy in the industry. As such, we are of opinion that respondents 3 and 2 have transgressed the limits of their jurisdiction under the Headload Workers Act, Rules and Scheme in passing Exts. P3 and P5 orders, which are ultra vires the Act, Rules and Scheme. Therefore, the impugned orders are quashed and the judgment of the learned Single Judge is set aside and the employment of headload workers in the Kollam Depot of the Civil Supplies Corporation shall be governed strictly in accordance with Ext. P1 settlement, which shall be ensured by the authorities under the Kerala Headload Workers Act, Rules and Scheme including respondents 2 and 3. P1 settlement, which shall be ensured by the authorities under the Kerala Headload Workers Act, Rules and Scheme including respondents 2 and 3. This judgment shall be applicable not only inter-partes but also to all cases before the authorities under the Headload Workers Act, Rules and Scheme which may arise as a general law on the subject and such authorities shall ensure that the law as declared in this decision is promptly applied by such authorities strictly in letter and spirit. The writ appeal is allowed as above.