JUDGMENT : DEVAN RAMACHANDRAN, J. 1. Even after more than four decades, the Kerala Headload Workers Act, 1978 (hereinafter referred to as ‘the Act’ for short) continues to present several issues and vicissitudes in its operation and impact across our State. 2. This Statute was certainly a landmark one when it was brought into force in the year 1980, with the ever so laudable objective of regulating the employment of a hitherto unorganized section of poor and exploited Working Class, who survive exclusively on their physical abilities and brawn. The Act was intended to make provision for the “Headload Workers” and for settlement of disputes relating to their employment or non-employment, as the case may be. 3. The Act certainly did its job well, but with the march of time and technological advances, vexed issues have begun to emerge as to the role of the “Headload Workers” and their contribution, particularly with respect to articles and consignments which are would require specialised care in its handling, including mechanised means. 4. In fact, recognizing the above, the Act was amended in the year 2008, reshaping Section 2(m) thereof, which defines a “Headload Worker” to now mean one who is engaged for loading and unloading or carrying on head or person or in a trolley, any article or articles, excluding “delicate and sophisticated articles.” An explanation was thereafter added to the Section to define “delicate” or “sophisticated article” to mean those which require to be handled by trained or skilled persons. 5. The ironical fallout to this has been that businesses and Headload workers are often at war over loading and unloading of articles, which the former claims to be “delicate” or “sophisticated” thus capable of being handled only by their own skilled and trained employees. 6. These cases are among the ones above and in question here are electronic devices appliances and equipments. 7. The pivotally germane and perhaps the singular issue in these cases is whether the articles being dealt with, sold or stored by the petitioners are “fragile” or “delicate and sophisticated” thus taking it out of the purlieus of Section 2(m) of the Act, while they are loaded and unloaded. 8. 7. The pivotally germane and perhaps the singular issue in these cases is whether the articles being dealt with, sold or stored by the petitioners are “fragile” or “delicate and sophisticated” thus taking it out of the purlieus of Section 2(m) of the Act, while they are loaded and unloaded. 8. The factual factors presented in these cases, and the reliefs sought being similar, if not identical in its nature and tenor, I have heard them together and thus deserve to be disposed of jointly, which I do through this judgment. 9. The petitioner in W.P. (C) No. 28462 of 2020 is stated to be engaged in the sale of “televisions, microwave ovens, food processors, smart toasters, air fryers, refrigerators of various kinds, coffee makers, power blenders, electronic kitchen ranges, dishwashers, washing machines, water purifiers, air conditioners, mixies etc.” (sic). He asserts that these articles are very “delicate and sophisticated” thus requiring great care and specialised handling and therefore, that he has engaged trained and skilled permanent workers on his Rolls, for its loading and unloading. 10. The petitioner alleges that, in spite of the fact that the afore articles are incapable of being handled by unskilled and untrained hands, various persons - claiming to be Headload Workers as defined under the Act - started obstructing his permanent workers in another of his Establishment last year, which forced him to approach this Court and to obtain Ext.P1 judgment in W.P. (C) No. 14656 of 2020, wherein, a learned judge of this Court, relying on various judgments, including Safa System and Solutions vs. Station House Officer, Palarivattom and Others, 2018 (3) KLT 9 , unambiguously declared that the aforementioned articles are “delicate and sophisticated” and resultantly that the “Headload workers” under the Act cannot claim statutory right to load and unload them. 11. The petitioner says that, however, in spite of the afore affirmative jural declarations, the party respondents are unleashing fear on his permanent employees, threatening them with violence if they engage in the loading and unloading activities in his present Establishment; and therefore, that he was driven to approach the Police Authorities seeking protection, but that since no action was taken thereon, he has been constrained to knock at the doors of this Court. 12. 12. The petitioner in W.P. (C) No. 12363 of 2021 is stated to be the proprietor of a Firm by name “Krishna Agencies” and asserts he is operating under a valid licence as a Courier Service Provider. He explains that he has a subsisting contract with “Amazon Transportation Services Pvt. Ltd.” to undertake delivery of various goods to the customers of “Amazon” an international E-Commerce company - all over Kochi, as is manifest from Exts.P2 and P3 and explains that such articles are first brought to his Establishment, checked, verified and then taken for distribution to the ultimate consignees from there. 13. As per the petitioner, the articles normally dealt with in his business are “delicate and sophisticated” electronic equipments like “mobile phones, electronic tablets, televisions, video recorders, radio receivers etc.” (sic), along with others like “baby products, beauty products, personal-care items, kitchen items, jewelry, musical instruments, toys etc.” (sic). As in the case of W.P. (C) No. 28462 of 2020, the petitioner herein asserts that the “delicate and sophisticated” articles involved in his business cannot be handled by the “Headload Workers” but that they still obstruct his “skilled and trained” employees and resultantly that he is forced to seek police protection. 14. As far as the petitioner in W.P. (C) No. 13779 of 2021 is concerned, he says he is engaged in retail sales and trading of “television sets, mobile phones, air conditioners, washing machines etc.” (sic) and that he is operating under a distribution licence with a Mumbai based Company by name “TTE Technology India Pvt. Ltd.” He impels identical contentions as the petitioners in the aforementioned writ petitions and I do not deem it necessary to record them specifically again. 15. Without the need for any further expatiation, it is rendered perspicuous, from the above narration of facts, that the let motif of the contentions and assertions of the petitioners in these cases is that the primary activity in their respective businesses is not loading and unloading of the articles aforementioned, but that it is only incidental to their main business of dealing in the said articles, either for sale or for delivery. They predicate that the aforementioned articles are extremely fragile in its nature, particularly in the present era, when electronic equipments and appliances have become very sophisticated and gossamer; and, therefore, that it requires to be handled with great care and only by persons who are specifically trained and skilled to handle them and not by the “Headload Workers” as defined within the ambit of the Act. 16. The petitioners explain that if any of the consignments of articles fall or are incorrectly held and handled at the time when it is loaded or unloaded, it may deracinate them and thus cause them irreparable loss, because neither will they be able to seek replacement from the manufacturers, who will take no responsibility for the loss on account of the articles having been dealt with than by skilled and trained personnel; nor will they be able to statutorily claim or obtain any compensation from the Kerala Headload Workers Welfare Board (hereinafter referred to as ‘the Board’ for short), since the Act provides no such remedy or mechanism. They thus assert that it is now imperative that they be allowed to load and unload the said “delicate and sophisticated” electronic articles only through their own workers, who have been trained and equipped with the necessary skills required for such purpose. 17. Pertinently, the petitioners then offer that, with regard to the articles which are not “delicate or fragile” the “Headload Workers” of the Pool concerned will certainly be engaged and that they are doing so even now. In fact, Sri. P.B. Sahasranaman - learned counsel for the petitioner in W.P. (C) No. 28462 of 2020, went one step further and said that whenever there were additional works which cannot be handled by his client’s specialised workers, the “Headload Workers” from the Pool had been engaged in the past and will be continued to be engaged hereinafter. 18. The petitioners thus pray that they and their trained and skilled permanent workers be allowed to load and unload the “fragile” and “delicate” and “sophisticated” electronic articles, without any let or interference from the party respondents in these cases - who are either Unions or workmen attached to the “Pools” under the Act. 19. The march of the defence against the above plea of petitioners was led by Sri. 19. The march of the defence against the above plea of petitioners was led by Sri. S. Krishnamoorthy - learned Standing Counsel for the “Board.” He submitted that since the “Headload workers” are statutorily attached to the “Board” who effect payment to them, it is their responsibility to ensure that they get their share of employment continuously. He then pointed out that in one of the above cases, namely W.P. (C) No. 12363 of 2021, this Court had directed the jurisdictional Assistant Labour Officer (ALO) to cause an inspection and report whether the Establishment would come within the umbra of the Second Schedule to the “Act.” He submitted that the ALO has thus filed a report, wherein, he unambiguously stated that the Establishment is one covered by item No. 5 in the Second Schedule to the Act and, therefore, that “Headload Workers” registered with the Board, under Section 26A of the Act, can alone be engaged by them. 20. Sri. S. Krishnamoorthy then proceeded to argue that the consignments mentioned above cannot be construed to be “fragile” or “delicate and sophisticated” because they are contained in well protected packings, boxes and cases; however, conceding that the equipments and appliances by themselves may be so. His specific predication was that the electronic equipments and appliances are packed by their manufacturers to withstand the stress and vagaries of transit, as also its loading and unloading and, therefore, that as long as the said articles remain in their protective boxes or packings, it ceases to be “fragile” or “delicate” contrary to the assertions of the petitioners. 21. Sri. S. Krishnamoorthy concluded by saying that the afore is manifest from the fact that all the petitioners have been engaging workers from the Pool maintained under the Act for the last several years and that it is only recently has it dawned on them that the articles are “delicate” and “fragile”; thus insinuatingly contending that this is only a charade employed by them to avoid employing the “Headload Workers” from the Pool, since the areas where they are conducting their businesses are covered by a Scheme under the Act. He thus prayed that this writ petition be dismissed. 22. The various counsel appearing for the party respondents and Unions in these cases more or less adopted the afore submissions of Sri. He thus prayed that this writ petition be dismissed. 22. The various counsel appearing for the party respondents and Unions in these cases more or less adopted the afore submissions of Sri. S. Krishnamoorthy, maintaining that the consignments mentioned above are sturdy and capable of being handled in transit without any specialised training or skill to be acquired. They also impelled an adjunct argument that, even if some of the articles are - without being conceded in any manner - construed to be “delicate or sophisticated” the others admittedly are not and, therefore, that the “Headload Workers” cannot be denied their legitimate right, at least to load and unload them. 23. The afore dialectical contentions of the parties being so recorded, It is limpid that this Court will have to forensically analyze and answer two aspects: (a) Whether the loading and unloading articles in the Establishments involved in these cases are the predominant ones carried on therein, thus bringing them within the sweep of Section 2(j) of the Act and of item No. 5 in the Schedule thereto and (b) are the electronic equipments and appliances being dealt with by them “delicate and sophisticated” as per the stipulations in the explanation to Section 2(m) of the Act. 24. However, I bear in mind that if this Court is to find the second among the afore aspects affirmatively, then the former one will become academic because, even if the Establishments are found to be ones falling within the ambit of item 5 of the Schedule to the Act, they will still be entitled to load and unload the articles/consignments using their own trained and skilled workers. 25. I will, ergo, first deal with the second afore issue and then proceed to the other. 26. Any assessment and answer to the question, whether the afore mentioned electronic appliances and equipments are “delicate or sophisticated” can certainly be done and offered by me, only after adverting to Safa System (supra), which has been delivered by a learned Division Bench of this Court. Pertinently, the question posed before the learned Bench was whether mobile phones are “delicate and sophisticated” which was answered infra in paragraph 11 thereof: “Section 2(m) of the Act defines “headload worker.” Explanation - II to the definition very clearly excludes stacking of articles which are delicate or sophisticated. Pertinently, the question posed before the learned Bench was whether mobile phones are “delicate and sophisticated” which was answered infra in paragraph 11 thereof: “Section 2(m) of the Act defines “headload worker.” Explanation - II to the definition very clearly excludes stacking of articles which are delicate or sophisticated. Mobile phones would, undoubtedly, come within that exception of delicate and sophisticated article and cannot be loaded and unloaded by persons who are not trained and skilled to do such job with due diligence. Any damage to an expensive mobile phone would result in huge loss to the petitioner. Hence, the petitioner is justified in engaging persons, who are trained in dealing with such sophisticated and delicate articles. The 5th respondent and their workers cannot, therefore, claim to have any right for loading and unloading of mobile phones in the establishment of the petitioner.” 27. Very interestingly, when the petitioner in W.P. (C) No. 28462 of 2020 approached this Court earlier by filing W.P. (C) No. 14656 of 2020, with respect to another similar establishment of theirs, Ext.P1 judgment, reported as Balakrishnan A. vs. Circle Inspector of Police, North Police Station, Alappuzha and Others, 2020 (6) KLT 593 was delivered by a learned Judge in their favour with the following observations and holdings: “I am of the considered opinion that the principles laid above will apply on all fours in the instant case as well. Smart televisions, Microwave Ovens, Food Processors and multi-door Fridges are much heavier and require more diligent handling than mobile phones which are lighter. As held in Safa Systems (supra) any damage to such costly appliances would result in the petitioner sustaining huge loss. Hence, I am of the considered view that the petitioner was well justified in engaging his own workers, who are skilled and trained in handling such sophisticated and delicate articles. The party respondents cannot insist that they have a rightful claim to have any right for loading the electrical and electronic equipment in the establishments of the petitioner.” It is conceded by all the respondents that no appeals have been filed by anyone, including the “Board” against Safa System (supra) or Balakrishnan A. (supra) and that they have thus become final. 28. 28. In such perspective, normally, it would not be necessary for me to independently consider whether the aforementioned electronic equipments and appliances would fall under the category of “delicate and sophisticated” ones but, since the respondent Unions and workers assert that Balakrishnan A. (supra) would not bind them because they were not parties to it and since Sri. S. Krishnamoorthy, learned Standing Counsel appearing for the Board attempts a spin to it, by saying that even if they are “delicate” on its own, such character would be lost when it continues to be packed and boxed by its manufacturers, I deem it necessary to answer the issue as a general declaration. 29. That said, since Safa System (supra) has affirmatively declared mobile phones to be “delicate and sophisticated” articles, no further controversy can be impelled by the respondents with respect to them. 30. As far as electronic appliances and equipments are concerned, it is common knowledge and accepted that they are “fragile” requiring special care and protection while moved from one place to another. 31. The present day electronic appliances and equipments contain circuit boards made out of delicate fibre glass, which houses various types of coils, transistors, capacitors and such other, which is held by tiny solder points. All these components are critical for the device/equipment to operate and a simple bump, pressure point or improper orientation can damage them, thus ruining and destroying its value. This is why the manufacturers specify in their packing that the consignment is “fragile” and requires extra care in their handling. 32. What I have said above being in the public domain of knowledge, would require no further elaboration, particularly because even the respondents admit that the equipments/ appliances on their own are delicate and gossamer. 33. However, the spin in the argument, as I have said above, is that as long as the devices/equipments continue in the packing and boxes made by the manufacturer, its characteristics of fragility are irrelevant, because such factory packing is designed to suffer the vagaries of transit. 33. However, the spin in the argument, as I have said above, is that as long as the devices/equipments continue in the packing and boxes made by the manufacturer, its characteristics of fragility are irrelevant, because such factory packing is designed to suffer the vagaries of transit. Even though this argument may seem to be lustrous at the first look, it would loose its sheen when one understands that even if the appliance/equipment is tilted or dealt with in an incorrect orientation, which is not specified by the manufacturer, its delicate internal components would be damaged; and that it would not require a fall or violent hit for such purpose. 34. This is apodictic because it is the afore reason that the manufacturer specify the manner in which the electronic articles and appliances have to be dealt with and often, if not always, the packing itself contain markings notifying that its contents are “fragile” and “delicate.” When the manufacturers show so in the packing itself, the respondents in these cases cannot be heard to say contrary to it. 35. Therefore, when the manufacturers specify the articles to be “fragile” and “delicate” or “sophisticated” it would not stand to reason for the respondents to contest it and to claim right to deal with it, without having specialised training or experience. 36. Obviously, therefore, when the manufacturer mandate a particular manner for handling the equipments/articles and if the petitioners do not scrupulously comply with it and should the same be subjected to deracination or deterioration, they would certainly hold the petitioners responsible and refuse any reparation, accusing them of having violated the necessary standards of care. This is a sure risk which the petitioners would carry if the electronic appliances/equipments are not properly handled; and I cannot, therefore, countenance the claims of the respondents to be entitled exclusively to be engaged for its loading and unloading. 37. Presumably, discerning the mind of this Court during hearing, Sri. S. Krishnamoorthy interjected to say that if this Court is concerned only about the loss they may be caused to the petitioners, it can then be sufficiently taken care of by the Board by offering them compensation in case of loss or destruction of a consignment or an electronic article. Presumably, discerning the mind of this Court during hearing, Sri. S. Krishnamoorthy interjected to say that if this Court is concerned only about the loss they may be caused to the petitioners, it can then be sufficiently taken care of by the Board by offering them compensation in case of loss or destruction of a consignment or an electronic article. The hypostasis of the afore argument, even according to S. Krishnamoorthy, is Section 38 of the Act, which provides for recovery of money from Headload Workers; and he then asserted that, in the event of any loss being caused by them, it will be possible for the petitioners to seek its recovery. 38. I am afraid that the afore argument of Sri. S. Krishnamoorthy is thoroughly incapable of acceptance because Section 38 of the Act makes it clear that it operates only in the event a Headload Worker becomes obliged to pay the employer amounts under a settlement or a decision referred to in Sections 21 and 22. That said, Section 21 deals only with disputes regarding employment or non-employment or terms of employment or conditions of work, but does not take in a situation where an employer/establishment is put to loss on account of the incorrect handling of an electronic article by the “Headload Worker.” Further, it is only a dispute enumerated in Section 21, which can be referred by the Government to the appropriate Authority for resolution under Section 22 of the Act. There are absolutely no provisions in the Act, contrary to what Sri. S. Krishnamoorthy says, as per which an employer/establishment can approach the Board against a Headload Worker for recovery of loss caused by him through incorrect handling of an article; nor is there a procedure in it, even whisperingly indicating, much less established, for this purpose. I can, therefore, only reject the afore contentions of Sri. S. Krishnamoorthy as being nothing more than brinkmanship. 39. Having thus concluded that mobile phones and electronic equipments/appliances/ devices are “delicate and sophisticated” within the umbra of the Explanation to Section 2(m) of the Act, it would not require this Court to consider the impact of Section 2(j) thereof, in the factual scenario of this case, except with respect to other articles, which are not “delicate.” 40. 39. Having thus concluded that mobile phones and electronic equipments/appliances/ devices are “delicate and sophisticated” within the umbra of the Explanation to Section 2(m) of the Act, it would not require this Court to consider the impact of Section 2(j) thereof, in the factual scenario of this case, except with respect to other articles, which are not “delicate.” 40. Consequently, I proceed to assess this issue solely to decide whether the Headload Workers will obtain a right to load and unload the articles, which are not “delicate and sophisticated” if any, being dealt with by the petitioners establishments. 41. In Theresa Jose vs. Sub-Inspector of Police, 2015 (3) KHC 487 , the interpretational ambit of Section 2(j) of the Act was incisively examined and declared in paragraph 19 thereof in the following manner: “One of the preconditions for falling an establishment within the meaning of Item No. 5 of the Schedule is where the workers, apart from loading and unloading, do some other incidental or connected operations. However, the emphasis is that the other operations are only incidental and connected. The words ‘incidental’ and ‘connected’ are joined by a conjunction “and.” Hence meaning of both words would take the same colour. The first condition for being an establishment under Item No. 5 is that the workers shall carry operations of loading and unloading as the main and predominant operation in addition to the incidental and connected operations which are not primary. Now the first phrase “establishment employing workers for loading and unloading” is of importance and has been consciously used by the Legislature. The words used are “establishment employing workers for loading and unloading.” The word used is verb ‘employing’ which indicate that the establishment is employing workers for loading and unloading which is a predominant activity of the establishment. If the establishment is not employing workers for loading and unloading it may not fall in Item No. 5.” 42. As seen above, the Board maintains that the areas, where the petitioners are engaged in their businesses, are covered by the Scheme notified under the Act. Therefore, what becomes relevant is the question whether the loading and unloading activities in the petitioners' establishments are the predominant ones or whether they are incidental to some other. 43. As far as the petitioners in W.P. (C) Nos. Therefore, what becomes relevant is the question whether the loading and unloading activities in the petitioners' establishments are the predominant ones or whether they are incidental to some other. 43. As far as the petitioners in W.P. (C) Nos. 28642/2020 and 13779/2021 are concerned, they maintain that they are in the business of retail sales and trading of various electronic appliances/equipments/devices, as described in the earlier paragraphs of this judgment. 44. It is relevant that, as per the orders of this Court, reports have been submitted by the Assistant Labour Officer and the Board in W.P. (C) Nos. 13377/2021 and 12363/2021, taking the position that the articles dealt with by the Establishments are not “delicate or sophisticated” but without, in any manner, saying if the loading and unloading activities are their predominant ones. This Court, therefore, is not in a position to find, from the pleadings, that the provisions of Section 2(j) would come to the aid of the party respondents in these cases. 45. However, since the petitioners say that they are willing to engage headload workers with respect to non-delicate and non-sophisticated articles, as also in the event they require additional man power, I feel it justified to dispose of these writ petitions as under. 46. In summation, as regards the mobile phones and other electronic articles/ equipments/devices which are specified as being ‘fragile’ or ‘delicate’ or ‘sophisticated’ by its manufacturers, the petitioners will be at liberty to have them loaded and unloaded with the aid of their own specialised and trained workers; but with respect to other articles, which are not so categorized, they will be obliged to employ the workers from the Pool maintained by the Board, because it is without contest in these cases that the areas where the petitioners businesses are being carried on are covered by the Scheme under the Act. 47. In the light of the afore observations and declarations, I allow these writ petitions directing the Station House Officers of the Police Station, within whose jurisdiction the petitioner establishments are located, to afford adequate and effective protection to them and their employees for loading and unloading of mobile phones, electronic articles/ appliances/equipments and such other ‘fragile, delicate and sophisticated’ ones, as are so specified by the manufacturers, without any let or interference from the party respondents or their men.