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2019 DIGILAW 523 (KER)

C. M. Makkar, S/o. Muhammed v. State Of Kerala

2019-07-03

K.VINOD CHANDRAN, V.G.ARUN

body2019
JUDGMENT : V.G.ARUN, J. The issue which arises for consideration in these writ petitions pertain to the registration of headload workers under the Kerala Headload Workers (Regulation of Employment and Welfare Scheme), 1983 ('the Scheme' for brevity) and pooling and deployment of the registered headload workers. 2. The petitioners and the party respondents in the writ petitions are headload workers having registration and issued with identity cards under Rule 26A of the Headload Workers Rules, 1981. In June, 2017, the Scheme was functionally implemented in the Methala-Udyam Kavala area in Asamannur Grama Panchayat. Thereupon, the petitioners and the party respondents, who were already registered and issued with identity cards under Rule 26A, submitted applications for registration under the Scheme. The Board granted registration to 12 members belonging to the STU (Swathanthra Thozhilali Union), 14 members belonging to the CITU (Centre of Indian Trade Unions) and 5 members belonging to the AITUC (All India Trade Union Congress). Even though 12 members belonging to INTUC (Indian National Trade Union Congress) had submitted applications for registration, that was not granted. The disputes amongst the headload workers belonging to different trade unions arose from that point, leading to the filing of these writ petitions, the necessary details of which are as under: - (a).W.P.(C) No.2414 of 2018 After functional implementation of the Scheme in the Methala-Udayam Kavala area, the petitioners, five in number, submitted applications for registration and were issued with identity cards under Para 6A(2) of the Scheme. Thereafter, the petitioners were pooled together and their pool allotted with the number 194-C. The petitioners originally belonged to the Headload and General Workers Union of the INTUC, but later shifted their allegiance and joined the AITUC. It is alleged that respondents 4 to 11, who are headload workers belonging to the INTUC and having no registration under Para 6A of the Scheme are obstructing the petitioners from doing loading and unloading work allotted to them. The writ petition is therefore filed seeking police protection for carrying out the headload works allotted to pool No.194-C, without obstruction from respondents 4 to 11 or the members of their union. Respondents 4 to 11 are members of the INTUC, who are having Rule 26A registration, but in spite of applying, have not been registered under Para 6A of the Scheme and consequently, are not included in any pool. Respondents 4 to 11 are members of the INTUC, who are having Rule 26A registration, but in spite of applying, have not been registered under Para 6A of the Scheme and consequently, are not included in any pool. (b).W.P.(C) No.31278 of 2018 The headload workers, who were members of the INTUC and were not registered under the Scheme initially, were subsequently registered pursuant to a direction issued by this Court in W.P.(C) No.4513 of 2018 to consider the claim of the those workers for registration under Para 6A of the Scheme and for inclusion in the pool of workers formulated by the Board for regulating the employment of the headload workers in the area. Thus 12 members of the INTUC were registered under Para 6A of the Scheme and a new pool; Pool No. 194-D, was formed with these workers as members. In spite of formation of the new pool, the workers were not being allotted work and hence the writ petition was filed by the pool leader seeking a direction to the Board and the Convener of the Perumbavoor Sub Committee to allot or deploy headload work to pool workers in Pool No.194-D in equal terms and in the same manner as is being allotted to Pool Nos.194-A, 194-B and 194-C. (c).W.P.(C) No. 33544 of 2018 The headload work in Methala-Udyam Kavala area in Asamannur Grama Panchayat was being deployed to the workers in Pool Nos.194-A, 194-B and 194-C on day-to-day turn basis. After the formation of Pool No.194-D, the question arose as to how the work could be divided by including the new pool. A decision was therefore taken by the Board that the 5 members in Pool No.197-C and the 12 members in the newly formed pool No.194-D would be deployed on a single day and that they should work together, thus maintaining the allotment on three days on turn basis. This decision of the Board is challenged by the members of Pool No.194-C. (d).W.P.(C) No.34551 of 2018 The members of the newly constituted pool No.194-D also challenges the decision of the Board that they should work along with the members of Pool No.194-C. (e) W.P.(C) No.5788 of 2019 Upon functional implementation of the Scheme in Methala-Udyam Kavala area in Asamannur Grama Panchayat, 7 members belonging to AITUC, having Rule 26A registration, had applied for registration under the Scheme. The writ petition is filed aggrieved by non-consideration of their applications, which according to the petitioners, is for political reasons. (f) W.P.(C) No.13642 of 2019 The members of Pool No.194-D has filed the writ petition seeking police protection alleging that in spite of their willingness to work along with members of Pool No.194-C, consequent to the decision by the Board to merge the pools, they are not being permitted to work by the members of Pool No.194-C. 3. The Board seeks to justify its actions by stating thus:- After functional implementation of the Scheme in the Methala-Udyam Kavala area in Asamannur Grama Panchayat, the sub-committee of Perumbavoor Sub Office considered the application submitted by the workers for 6A registration on 19.7.2017 and decided that new pools can be started in the Methala-Udyam Kavala area by giving 6A registration to 5 workers of the three unions, which had submitted applications. On the basis of Sub-Committee decision, 6A cards were issued to 5 workers of the three unions, forming three pools with numbers 194-A, 194-B and 194-C. It was also decided that the remaining applicants can be considered later, if there is progress in the wages of the workers in the three pools, with an average income of Rs.5,000/-per worker per month. After issuance of 6A cards, 5 workers of pool No.194-C left INTUC union and joined AITUC and continued in the same pool. While so, 12 members of INTUC, who had submitted application along with the headload workers who were issued with 6A registration, approached this Court and obtained a direction in W.P.(C) No.4513 of 2018 to consider and take decision on their applications. Accordingly, their applications were considered, 6A registration granted and a new pool (No.194-D) formed with the 12 INTUC members. Simultaneously, 6A registration was granted to 9 workers in Pool No.194-B and 7 workers in 194-A. Thereafter, in its 10th meeting held on 3.7.2018, the Sub-committee decided that the 12 workers of the newly formed 194-D pool and 5 workers of 194-C pool should work together. That decision was approved by the District Committee, as per its resolution dated 18.9.2018. In spite of such decision, the workers in pool 194-C & D were not willing to work together. If the number of turns is increased, it will adversely affect the working days available to the workers. That decision was approved by the District Committee, as per its resolution dated 18.9.2018. In spite of such decision, the workers in pool 194-C & D were not willing to work together. If the number of turns is increased, it will adversely affect the working days available to the workers. If the turns is restricted to 3, each pool will get 10 days work in a month, whereas, the increase of the turns to 4 would reduce the number of working days to 7 per pool. 4. From the pleadings and the reliefs sought in the writ petitions, it is evident that the bone of contention among the headload workers in the different pools is with regard to allotment/deployment of work, which according to some, are inequitable and the obstinate stand of the members of different pools, which has been constituted on purely political consideration, to work along with members of other pools. Therefore, it has to be considered as to whether the provisions of the Act, Rules and the Scheme contemplate pooling of Headload Workers on political basis. To answer the question, the relevant provisions of the Act, Rules and Scheme have to be looked into. 5. As is revealed from the preamble of the Headload Workers Act, 1978, the objective of the Act is to regulate the employment of headload workers in the State of Kerala and to make provision for their welfare, for the settlement of disputes in respect of their employment or non employment and for matters connected therewith. Section 14 of the Act provides for establishment of the Headload Workers Welfare Fund Board for the purpose of exercising the powers and performing the functions of the Board under the Act and the Schemes. Section 18 (1) provides for appointment of a Committee for every revenue district in the State and for appointment of as many special committees as is deemed fit in any area. Sub- Section 8 of Section 18 enumerates the functions of the Committee as follows: - “(a) to pool the headload workers who are not employed under any employer or contractor; (b) to arrange and regulate employment of such headload workers and to pay them wages. (c) to take disciplinary action against them wherever necessary. Sub- Section 8 of Section 18 enumerates the functions of the Committee as follows: - “(a) to pool the headload workers who are not employed under any employer or contractor; (b) to arrange and regulate employment of such headload workers and to pay them wages. (c) to take disciplinary action against them wherever necessary. (d) to do all such acts as are necessary for the implementation of the Act and the scheme.” Section 13(1) empowers the Government to make one or more scheme or schemes for any employment or group of employments in one or more area or areas specified in the notification, and to amend vary or substitute a scheme. Section 13 (2) details the matters that may be provided for in the Scheme. Those matters include the power to regulate the employment of headload workers and the terms and conditions of such employment. It also contains a provision for pooling of headload workers, who are not employed under any employer or contractor. The power to make rules is provided under Section 43. 6. The Kerala Headload Workers Rules, 1981 was formulated in exercise of the power under Section 43. Rule 26A pertains to registration of Headload Workers. The registration under the Rules is to be made by the Assistant Labour Officer in the Register of Headload Workers, on being satisfied that the headload worker, who had submitted the application for registration, is eligible for registration. On such registration, the headload worker will be issued with an identity card. 7. The Scheme envisages its administration to be conducted by the Committee and the Board, who shall be responsible to the Government for such administration. Paragraph 6 of the Scheme, dealing with procedure for regulation of employment of headload workers in Scheme areas reads as follows:- “6(1) No headload worker, who is not a registered headload worker under the provision of the Kerala Headload Workers Rules, shall be allowed or required to work in any area to which the Scheme applies from the date of commencement of the functional operation of the Scheme in the area. (2) From the date of commencement of the functional operation of the Scheme in any area, no headload worker who is not permanently employed by an employer or contractor shall be allowed or required to work in any area to which the Scheme applies unless he is granted a further registration under the provisions of the Scheme.” The other relevant provision in paragraph 6A which reads as follows:- “6A. Registration of headload worker under the Scheme at the Commencement of the Scheme.-At the commencement of the Scheme in any area a headload worker who is not permanently employed by an employer or contractor and who is not permanently employed by an employer or contractor and who is registered under the provisions of the Kerala Headload Workers Rules may submit his application in Form A to the Convener of the Committee concerned for registration in the Committee under the Scheme along with two passport size photographs. (2) On receipt of an application for registration as above, the Convener of the Committee or an officer authorised by him in this behalf shall verify the application with reference to the registration granted as per the provisions of the Kerala Headload Workers Rules and after such enquiry as the Convener may deem fit and after giving the applicant an opportunity of being heard, may on his being satisfied that the applicant is eligible for registration under the Scheme grant such registration to him by registering his name and particulars in the “Register of Headload Workers of the Committee” in Form D, and communicating the fact of the registration to the applicant in writing. (3) All such Headload Workers registered under sub paragraph (2) above shall be issued an identity card in Form C. One copy of the photograph duly attested by the Convener shall be affixed in the identity card and the other copy affixed in the “Register of Headload Workers of the Committee” in Form D. (4) If the application for registration in the committee is rejected the Convener shall communicate that fact to the applicant in writing with reasons therefor forthwith.” 8. A reading of Paragraph 8 of the Scheme would show that every registered headload worker, to whom registration has been granted by the Convener of the Committee is bound to work only in the area as per the allotment made by the Committee. A reading of Paragraph 8 of the Scheme would show that every registered headload worker, to whom registration has been granted by the Convener of the Committee is bound to work only in the area as per the allotment made by the Committee. Paragraph 19 empowers the Committee to determine the number of headload workers needed for their area and for this purpose to increase or decrease the number in their register. Paragraph 20 authorises the Chairman to make necessary arrangements to pool the registered workers into as many groups as are needed and to locate these groups at the locations decided by him. Paragraph 24 A provides for removal of a headload worker from the rolls of the Committee on being continuously absent from work without sufficient reason. 9. From a conjoint reading of the above provisions, it is clear that only a headload worker, having registration and identity card under Rule 26A of the Rules, is eligible for registration under Para 6A. The right to apply for registration under Para 6A would arise on the functional implementation of the Scheme in an area. The headload worker making such application shall not be permanently employed by an employer or contractor. The Convener of the Committee must verify the application with reference to the registration granted as per the provisions of the rules. The registration should be granted after conducting such enquiry as the Convener deems fit and after providing the applicant an opportunity of being heard and on being satisfied that the applicant is eligible for registration under the Scheme. Once headload workers in an area over which the functional operation of the scheme has been implemented, is registered, then the Chairman of the Committee has to make necessary arrangements to pool the registered workers into as many groups as are needed. There is no provision in the Act, Rules or Scheme to pool the headload worker of an area on the basis of their political and party affiliations. The pooling of headload workers is done with the objective of providing equitable distribution of work and wages to the headload workers and to provide a platform for propagating their political ideologies. There is no provision in the Act, Rules or Scheme to pool the headload worker of an area on the basis of their political and party affiliations. The pooling of headload workers is done with the objective of providing equitable distribution of work and wages to the headload workers and to provide a platform for propagating their political ideologies. The headload workers, like every citizen of the country has the freedom to indulge in such activities, but have no legal right to demand that they should not be pooled or made to work along with headload workers belonging to different political parties. Hence, the formation of headload workers pools in accordance with their political allegiance has no legal sanction. As stipulated in Paragraph 8 of the Scheme, registered workers to whom registration has been granted by the Committee is bound to work as per the allotment made by the Committee. Refusal to work as per allotment and obstruction of work by other willing headload workers would amount to indiscipline, for which action can be initiated under Chapter IX of the Scheme and the guilty members registration cancelled. 10. The pooling of headload workers on political basis is the only reason for the disputes, which prompted the filing of these writ petitions. A solution to the dispute would be to pool the headload workers apolitically in an equitable manner. The total number of headload workers in the four different pools being 43, the 43 workers can be accommodated in three pools of almost equal strength. Such reconstitution and pooling of workers in the three pools shall be done by the Committee without considering the political and party affiliations of the headload workers. If, after such re-constitution, any worker refuses to work or obstructs the work of other willing workers, appropriate disciplinary action as stipulated under Para 26A shall be initiated against those persons. Any obstruction caused to the loading and unloading work by such obstructor shall be averted by the police. 11. It is pointed out that at least some among the 43 headload workers have been consistently absent, as would be evident from a perusal of the muster rolls. Paragraph 26 A of the Scheme provides for removal of such persons from the rolls of the Committee and cancellation of their registration, after giving notice. 11. It is pointed out that at least some among the 43 headload workers have been consistently absent, as would be evident from a perusal of the muster rolls. Paragraph 26 A of the Scheme provides for removal of such persons from the rolls of the Committee and cancellation of their registration, after giving notice. The Committee can conduct an enquiry with regard to this aspect and if any among the 43 registered headload workers are found to be continuously absent, necessary steps, with due notice, shall be initiated for removal of such persons from the rolls of the Committee. On such removal being effected the Committee should rearrange the pools so as to ensure that each pool has an equal number of workers as far as possible. 12. As far as the contention of the petitioners in W.P.(C) No.5788 of 2019 regarding non-consideration of their application for registration is concerned, the Convener, Perumbavoor Sub Office of the Kerala Headload Workers Welfare Fund Board is directed to consider the applications and to take a decision in accordance with Para 6A of the Scheme. 13. The learned Standing Counsel for the Board points out that the Assistant Labour Officers, who are the prescribed authority for grant of registration to headload workers under Rule 26A are not issuing notices to the Board before taking a decision on the applications submitted for registration of headload workers under Rule 26A. It is made clear that since Rule 26A (2) mandates issue of notice on receipt of an application for registration under Rule 26A to the employers or contractors from whom the headload workers claims work and to the Chairman, Kerala Headload Workers Welfare Fund Board Local Committee, if the area to which registration is applied for is an area where the scheme is in operation, the Assistant Labour Officers, before whom applications for registration is filed shall act strictly in accordance with the mandate of Rule 26A. While considering the issues involved in these writ petitions, we were reminded of the initial clarion call of the workers movement across the world, which exhorted the workers to unite and not otherwise. However the Unions too canvas divisive forces on grounds of increased membership and not out of concern for the community of workers. While considering the issues involved in these writ petitions, we were reminded of the initial clarion call of the workers movement across the world, which exhorted the workers to unite and not otherwise. However the Unions too canvas divisive forces on grounds of increased membership and not out of concern for the community of workers. Any worker refusing to co-operate shall be proceeded against and the pool members shall act strictly in accordance with the directions of the Board. The writ petitions are disposed of with the above directions.