R. K. Ventures v. District Superintendent of Police, Ernakulam (Rural), Aluva
2024-09-09
V.G.ARUN
body2024
DigiLaw.ai
JUDGMENT : V.G. Arun, J. The petitioner firm has entered into an agreement for carrying out the logistic work of M/s. Indus Towers Ltd., an infrastructure provider in the telecommunication sector. As per the agreement, the petitioner has to undertake the storage and transportation of sensitive electronic panels, sophisticated electronic goods, diesel generators, steel items and allied equipment. For carrying out these activities, the petitioner has constructed a warehouse at Malayidamthuruth in Kizhakkambalam. The Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 (‘the Scheme’ for short) is made applicable to the area in which the warehouse is situated. The petitioner alleges that the registered headload workers in the area are obstructing the loading and unloading activity carried out in the warehouse. The prayer in the writ petition is to direct respondents 1 to 3 to provide adequate and effective Police protection to the petitioner and its workers for carrying out loading activity in the warehouse and for running the logistic business without any threat, hindrance or obstruction from the members of the 5th and 6th respondent unions. 2. Heard, Sr. Adv. A.V. Thomas appearing for the petitioner, instructed by Adv. Baby Kuriakose, Advs. P.K. Ibrahim, K.S. Arun Kumar, P. Sathisan for respondents 7 to 9 respectively, and Adv. Rekha C. Nair, the learned Government Pleader. 3. It is contended by the learned Senior Counsel that the goods loaded and unloaded at the warehouse are sensitive and sophisticated materials like electronic panels, diesel generators and allied items. Any mishandling by unskilled persons will damage the articles and cause loss to the petitioner. The articles are therefore to be loaded and unloaded by specially trained workers. The other items like diesel generator sets and steel girders are loaded and unloaded using cranes and forklifts. In such circumstances, the demand that the registered headload workers should be engaged for carrying out the activity, is untenable. 4. In support of the contention that even in a scheme covered area, registered headload workers need not be engaged for loading and unloading of sophisticated and delicate articles or those done with the aid of machinery, reference is made to the definition of ‘headload worker’ in Section 2(m) and the exemption in Section 9A of the Act.
4. In support of the contention that even in a scheme covered area, registered headload workers need not be engaged for loading and unloading of sophisticated and delicate articles or those done with the aid of machinery, reference is made to the definition of ‘headload worker’ in Section 2(m) and the exemption in Section 9A of the Act. To further buttress the argument, reliance is placed on the decisions in Safa System & Solutions v. Station House Officer, Palarivattom and Others [ (2018) 3 KHC 311 ], Balakrishnan A v. Circle Inspector of Police, North Police Station, Alappuzha and Others [ (2020) 6 KHC 701 ] and Krishna Kumar and Others v. Deputy Superintendent of Police, Alappuzha and Others [ (2021) 5 KHC 717 ]. 5. Learned Counsel for the 7th respondent submitted that the writ petition was filed even before the warehouse was constructed. Hence, the allegation that the activities were obstructed by the registered headload workers is patently false. As a matter of fact, petitioner had engaged the registered headload workers during construction of the warehouse building and now that the unit has became functional, the petitioner wants to carry out the activities with workers of its choice. The contention that only trained workers can carry out the loading activities is liable to be discarded, since applications have been filed by the petitioner for getting its own workers registered under the Headload Workers Rules, 1981. Moreover, the registered headload workers of the area are having sufficient experience in handling electrical and electronic equipments, generator sets and steel girders, evidenced by Ext.R7(A) letter. It is contended that, Indus Towers Ltd. being the principal employer, the petitioner has no locusstandi to file the writ petition. Moreover, Ext.P13 agreement executed between the parties has no legal validity in view of Section 39 of the Act. 6. Learned Counsel for the 8th respondent submitted that a complaint was received from the leader of the headload workers of Pool No.59, alleging that the pool workers were not being engaged in the petitioner establishment. Thereupon, a meeting was convened by the Assistant Labour Officer/4th respondent. In that meeting, the petitioner's representative took an obstinate stand that the registered headload workers will not be engaged. It is contended that the area is scheme covered and as the registered headload workers are having the requisite skill and experience, they are bound to be engaged.
Thereupon, a meeting was convened by the Assistant Labour Officer/4th respondent. In that meeting, the petitioner's representative took an obstinate stand that the registered headload workers will not be engaged. It is contended that the area is scheme covered and as the registered headload workers are having the requisite skill and experience, they are bound to be engaged. The apprehension that engagement of registered headload workers would result in the costly equipment being damaged is misplaced and is put forth only as an excuse for engaging the petitioner's own workers. 7. Learned Counsel for the 9th respondent submitted that the petitioner's workers have been specially trained to deal with the electronic equipment and other sophisticated articles with due care and caution. It is also submitted that the company had bitter experience whenever the registered headload workers were engaged. 8. The petitioner is relying on Sections 2(m) and 9A of the Kerala Headload Workers Act, 1978 (‘the Act for short) to contend that, persons other than registered headload workers can be engaged for loading of delicate or sophisticated articles even in a scheme covered area. Per contra, the unions and the Kerala Headload Workers Welfare Fund Board contends that, as the registered headload workers of the area are having requisite skill and experience, they alone should be engaged. 9. The rival contentions gives rise to the question whether an employer can engage workers of his choice, even if the registered headload workers in a scheme covered area have the requisite skill in handling delicate or sophisticated articles. 10. While venturing to answer the question, the objective of the Act, which is to regulate the employment of headload workers and make provision for their welfare, is to be borne in mind. No doubt, the definition of ‘headload worker’ in Section 2(m), excludes workers engaged for loading and unloading of delicate or sophisticated articles. Likewise, the proviso to Section 9A enables the employer to engage persons other than registered headload workers, if the work requires the assistance of skilled persons or the use of machinery. On the contrary, Clause 6 of the Scheme mandates that no headload worker who is not a registered headload worker under the provisions of the Kerala Headload Workers Rules shall be allowed or required to work in a scheme covered area. 11. This dichotomy can be resolved by resorting to purposive interpretation of the provisions.
On the contrary, Clause 6 of the Scheme mandates that no headload worker who is not a registered headload worker under the provisions of the Kerala Headload Workers Rules shall be allowed or required to work in a scheme covered area. 11. This dichotomy can be resolved by resorting to purposive interpretation of the provisions. It is true that the definition of headload workers in Section 2(m) does not take in persons engaged for loading, unloading or stacking delicate or sophisticated articles. By virtue of the proviso to Section 9A, in the case of works requiring assistance of skilled persons and which are to be done with due diligence or require the aid of machinery, an employer can engage persons having such skill. It is evident from the provisions that the law makers had not envisaged a situation where the registered headload workers themselves are skilled persons. The omission probably was due to the general perception that headload workers survive on their physical ability and brawn alone. Here, it is essential to note that, many among the headload workers, especially the youngsters, are well educated and capable of acquiring the special skills required for handling sophisticated or delicate articles. It is for the Government and the Headload Workers Welfare Fund Board to take necessary steps in that regard. If not, the laudable objective of the Act will be defeated by every other employer claiming that the headload works in his establishment require the service of persons with special skills. While on the issue, it is essential to note that Clause 6 of the scheme makes it mandatory to engage registered headload workers in a scheme covered area without exception. On purposive interpretation of the above provisions, in the backdrop of the social changes over the years, it has to be held that if the registered headload workers in a Scheme covered area are having the requisite skill and experience in handling delicate or sophisticated articles, they are bound to be engaged for the loading and unloading work. 12. In the case at hand, the registered headload workers are in possession of documents to prove their claim of having requisite skill for handling delicate or sophisticated articles. It is also on record that the Assistant Labour Officer had convened a conciliation conference, but the efforts at settlement did not fructify, since the petitioner was not willing to engage the registered workers.
It is also on record that the Assistant Labour Officer had convened a conciliation conference, but the efforts at settlement did not fructify, since the petitioner was not willing to engage the registered workers. 13. Yet another aspect of importance is the mechanism for resolution of disputes contained in Section 21 of the Act. As per Section 21(1), the Assistant Labour Officer is conferred with the power to convene a conciliation conference and if no settlement is arrived at, to send a report of the dispute to the Conciliation Officer appointed under Section 3 of the Act. Thereupon, the Conciliation Officer should hold conciliation proceedings and if the parties come to a settlement, send a report to the appellate authority. On the other hand, if no settlement is arrived at, the Conciliation Officer can take a decision on the dispute. Any person aggrieved by the decision of the Conciliation Officer can submit an appeal to the Appellate Authority. In view of the above efficacious mechanism, grant of Police protection, without exhausting the alternative remedy would be inappropriate. The writ petition is hence disposed of, directing the authorities under the Headload Workers Act to decide the dispute between the petitioner and the unions, in accordance with the procedure prescribed under Section 21 of the Act. The parties are at liberty to raise all their contentions before the authorities.