Research › Search › Judgment

Kerala High Court · body

2020 DIGILAW 1049 (KER)

Hadiyya Logistics Private Limited v. Jayan

2020-12-11

RAJA VIJAYARAGHAVAN V.

body2020
JUDGMENT : 1. The Steel Authority of India Ltd. (SAIL) is having a warehouse/stockyard at Irumbanam, Ernakulam. The petitioner has been assigned with the consignment handling works as per a contract entered into between the petitioner and SAIL. As the consignment handling agent, the petitioner is required to carry out loading and unloading of TMT beams, channels, coils, heavy metal sheets using cranes as well as machines by employed skilled employees. The petitioner states that the respondents are obstructing the work claiming that they have the right to handle the work of loading and unloading inside the warehouse. They contend that on 25.9.2020, the respondents 1 and 2 along with several other workers trespassed into the stockyard premises and threatened the officers and employees of the petitioner claiming that they have the right to handle the materials inside the yard. Ext.P3 complaint was lodged by the Branch Manager before the 3rd respondent seeking police assistance Later, Ext.P4 complaint was lodged by the petitioner. However, no assistance was granted. According to the petitioner, they are bound to comply with the conditions stipulated by SAIL in an expeditious manner if there is any delay, they are likely to be termed as defaulters. It is in the afore circumstances that the petitioner is before this Court seeking for issuance of directions to the third respondent to afford protection to the life of directors of the petitioner, its employees, vehicles and properties from any threat of the respondents one and two for handling materials in the yard of SAIL at Irumpanam. 2. The respondents 1 and 2 have filed a counter-affidavit. It is contended that the petitioners have been working in the SAIL stockyard for more than 15 years under various contractors and hence have acquired the right to be engaged for the handling work inside the warehouse. They contend that in the year 2006, M/s. F.M. Transports, another concern of which the father of the petitioner was the Managing Partner, became the successful bidder for consignment handling. Alleging that obstruction was caused by the headload workers, M/s.F.M.Transport had filed W.P.(C) No.10265/2006 before this Court and the matter was ultimately settled at the instance of the District Labour Officer. M/s.F.M.Transport had agreed that 15 existing headload workers and 6 of their employees would be permitted to work in the SAIL stockyard. Alleging that obstruction was caused by the headload workers, M/s.F.M.Transport had filed W.P.(C) No.10265/2006 before this Court and the matter was ultimately settled at the instance of the District Labour Officer. M/s.F.M.Transport had agreed that 15 existing headload workers and 6 of their employees would be permitted to work in the SAIL stockyard. The headload workers were consequently registered as headload workers of M/s.F.M.Transport with the Assistant Labour Officer, Ernakulam. The respondents 1 and 2 were issued cards under Rule 26A of the Headload Workers Rules. The respondents 1 and 2 have denied that the loading, unloading, and shifting of materials in the SAIL stockyard is done using mechanised devices. According to them, only pick and carry type cranes are used in the SAIL stockyard. Those devices require the assistance and employment of headload workers like respondents 1 and 2 and several others. They deny that any incident of the nature alleged had taken place on 25.9.2020 or on any other day. Being aggrieved by the denial of employment, they had submitted a detailed complaint before the District Labour Officer and the said authority has been initiated steps to resolve the disputes. 3. The petitioner has filed a reply affidavit. In their reply, they have stated that the respondents 1 and 2 and other workers are not registered headload workers, nor have they been employed by SAIL at any point of time. They do not have any valid identity cards issued under R.26A of the Kerala Headload Workers Rules. They are not attached to any of the pools in the area and no amount is being paid by or through the board. They would point out that the identity cards produced before this Court was issued in the year 2006 and the employer made mention of in the card is F.M.Transport, Vytila. The contract between SAIL and M/s.F.M.Transport had expired in the year 2011. Thereafter, Southern Transport Company became the new contractors. In so far as R1(e) identity cards are concerned it is pointed out that those cards would only reveal that the respondents 1 and 2 and others are workers of Southern Transport Company and nothing more. It is further stated that the petitioner does not intend to deny the employment of respondents 1 or 2 or the other workers in the warehouse and stockyard of SAIL. It is further stated that the petitioner does not intend to deny the employment of respondents 1 or 2 or the other workers in the warehouse and stockyard of SAIL. However, as the loading and unloading works are done exclusively with heavy machinery and that too with trained workers, the petitioners or any other registered headload worker cannot claim that they should be engaged. 4. I have considered the submissions advanced by both sides. 5. Sri P.M.Ziraj, the learned counsel appearing for the petitioner would rely on the judgement of this Court in Vettro Traders and Integrated Services v. Sub-Inspector of Police ( 2019 (3) KLT 825 ) and Timber Merchant Association, Pala & Ors. v. Superintendent of Police & Ors. ( 2016 (1) KHC 841 ) and it was argued that in case of works which require the assistance of skilled persons and which are to be done with due diligence with the aid of machines, the party respondents or other registered workers cannot maintain that they should be engaged. He would further contend that though he disputes the position that the respondents 1 and 2 are workers having a valid registration under the Headload Workers Act, he would submit that the petitioner has no objection in engaging such workers if any manual labour is involved. 6. Sri. Philip T.Varghese, the learned counsel appearing for the party respondents, submits that the assertion by the petitioner that the works are done exclusively using machines cannot be accepted. Manual work is also involved for which purpose, the respondents 1 and 2 are to be engaged is the submission. He would also refer to the station which has prevailed when previous contractors had handled the work and it was argued that the attempt of the petitioner is to disengage the workers on frivolous grounds. 7. Sri. Krishnamoorthy, the learned standing Counsel appearing for the Board submitted that though the respondents cannot technically be termed as workers registered under the Headload Workers Act, the Rules and the Scheme framed thereunder, they have been working in the SAIL warehouse for the past several years after having been assigned to independent contractors. In that view of the matter, there cannot be any justification on the part of the petitioner to deny them work. 8. I have considered the submissions advanced. 9. In that view of the matter, there cannot be any justification on the part of the petitioner to deny them work. 8. I have considered the submissions advanced. 9. As the nature of loading work that is being carried out in the SAIL godown is the fulcrum of the dispute, to gain some clarity, this court, by order dated 2.11.2020, suo moto impleaded the District Labour Officer and a report was ordered to be filed on the queries framed by this Court. The DLO inspected the SAIL stockyard on 05.11.2020 and has furnished a detailed report. The relevant portion is extracted below for easy reference:- (a) Nature of work which is being carried out by the petitioner in the SAIL Stockyard? The operations currently being carried out at the SAIL stockyard at Irumbanam is loading and unloading operations of TMT beams, channels, Coils, Heavy metal sheets etc. using cranes and machines. (b) Whether the entire handling work can be carried out using machines and the nature of equipment used by the petitioner? Loading and unloading operations are done using mechanized devices like crane, forklift, etc. Attaching sling to the machine and cranes for such loading unloading operations are done using manual labour. It has also been noticed that a former contractor, M/s F.M.Transports employed manual labour for lifting metal plates using bars, stacking, attaching slings, etc., during their operations. (c) Whether the services of headload workers are required for the purpose of handling? Whether the work claimed by the respondents 1 and 2 are strapping the heavy steel girders to the crane and nothing more? Though loading and unloading operations are done using mechanized devices like crane, forklift, etc., attaching sling to the machine and cranes for such loading unloading operations are done using manual labour. The same are being done by headload workers as a part of loading and unloading works in common practice. (d) Whether the respondents 1 and 2 or the other workers who claim work are holding cards issued under Rule 26A of the Headload Workers Rules? Respondent l and 2 and few other workers have been granted registration under Rule 26A of the Headload Workers Rules for the purpose of doing headload work under the employer M/s.F.M.Transports, Vytilla on 30.03.2006. (d) Whether the respondents 1 and 2 or the other workers who claim work are holding cards issued under Rule 26A of the Headload Workers Rules? Respondent l and 2 and few other workers have been granted registration under Rule 26A of the Headload Workers Rules for the purpose of doing headload work under the employer M/s.F.M.Transports, Vytilla on 30.03.2006. It is noted that the aforesaid company previously had a contract with Steel Authority of India Ltd, for loading and unloading operations at SAIL stockyard, Irumbanam. (e) Whether the contract entered into between SAIL and the petitioners require the contractor to employ manual labour for carrying out the handling work? The contract between SAIL and the petitioners does not specify the need for loading and unloading operations using manual labour. (f) Such other details that are brought to the notice of the DLO. Though loading and unloading operations are done using mechanized devices like crane, forklift, etc., attaching sling to the machine and cranes for such loading unloading operations are done using manual labour. Lifting metal plates using bars for the purpose of strapping, stacking, attaching slings, etc., needs manual labour. The same are being done by headload workers as a part of loading and unloading works in common practice. 10. The report filed by the DLO would reveal that the works in the SAIL stockyard involved loading and unloading of TMT beams, channels, Coils, heavy metal sheets etc., using cranes and machines. It is apparent that the work is carried out by skilled workers trained for this particular purpose. 11. “Headload worker” is defined under Section 2(m) to mean 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. The said worker would also include such a person employed for stacking articles, excluding delicate or sophisticated articles, in a vehicle or unloading by sliding using manual labour from a mechanically propelled vehicle. The said worker would also include such a person employed for stacking articles, excluding delicate or sophisticated articles, in a vehicle or unloading by sliding using manual labour from a mechanically propelled vehicle. By Act 13 of 2018 S.9A was introduced and the proviso to the said section states that in the case of works which require the assistance of skilled persons and which are to be done with due diligence or require the aid of machinery, such works may be done by engaging the persons having such skill or by the machinery. 12. Considering the nature of work in the warehouse, as detailed in the report submitted by the District Labour Officer, it is apparent that work in the warehouse can be done only using heavy machinery and cranes. As held by this Court in Vettro (supra) no demand for loading and unloading work can be raised when the loading work requires special skill and is carried out with the help of machines. The machines are operated by skilled workers and if any assistance is required for the purpose of loading, like slinging or strapping the heavy sheets and coils, that has also to be done by workers who are trained for that purpose. However, if there is any manual headload work, the petitioner will have to necessarily engage the services of the registered pool workers. The party respondents or their men will have no right to claim that they should be engaged to the exclusion of machines or skilled workers who operate the said equipment. In the result this Writ Petition is disposed of ordering that in the event of the respondents 1 and 2 or their men causing any obstruction to the handling of consignment by the petitioner in the SAIL godown with the aid of machines and skilled workers, the police shall grant protection to enable the petitioner to carry on the work. However, if there is any manual headload work, the petitioner shall engage registered pool workers.