The Judgment of the Court was delivered by
Balakrishnan, J.:— These original petitions have been referred to a Division Bench as an important question of law of general application is involved in these matters.
2. The petitioners in O.P No. 11628 of 1996 is conducting a saw mill and doing business in timber at Maradi Village in Muvattupuzha. According to the petitioner, he started the saw mill business in 1994 with nine permanent workers. They have been engaged for loading and unloading work in the saw mill. The fourth respondent is a trade union and according to the petitioner, the members of this trade union are obstructing the loading and unloading work of the petitioner. The members of the union prevent the petitioner's workers from doing loading and unloading work. The petitioner submitted a representation to the police authorities, but was of no avail. Therefore, petitioner prays that respondents 1 to 3 may be directed to see that the work in the saw mill of the petitioner be allowed to be handled by the petitioner's workers and the members of the fourth respondent-union be prevented from interfering with the loading and unloading work in the saw mill. Petitioners has sought for police protection.
3. In this original petition the fourth respondent has filed a counter-affidavit stating that the petitioner does not have 9 permanent workers. All the loading and unloading work in the saw mill is being done by the member of the fourth respondent-union who are 18 in number. The petitioner started the mill in 1994 and previously the mill was under the management of another person and the business was carried on in the name and style as “Jaya Timbers.” The members of the fourth respondent-union had never obstructed the loading and unloading work. It is further contended that the petitioner's mill is situated in an area to which the provision of the scheme framed under S. 13 of the Kerala Headload Workers Act is made applicable. The scheme provides for pooling of headload workers. There are other establishments also in that area and loading and unloading work in these establishments is also being done by the member of the fourth respondent-union. The members of the fourth respondent-union are issued with identity cards and the wages are also fixed depending on the cubic feet. When a dispute arose, petitioner was called for a conciliation conference. But he refused to attend the meeting.
4. The petitioner in O.P No. 11780 of 1996 is a dealer in raw skin and he is having business in the name and style “The Skin Emporium” in Thrissur. This business was originally started by the petitioner's father about 50 years ago. The petitioner purchases raw skin from local slaughter houses and they are stacked and preserved after mixing it with salt to avoid decay. The petitioner has his own workmen for loading and unloading the raw skin and bags of salt. Petitioner's workers used to do the loading and unloading work. Later the members of the headload workers union came for loading and unloading of articles outside the establishment. Petitioner used to make remittances with the Headload Workers Welfare Fund for the work done by the members of the union. The petitioner used to keep the raw skin only for a few days and they have to be sent to other places at the earliest. The handling of raw skin requires skill and expertise. In June 1996 some of the headload workers abstained from work on account of strike. This adversely affected the petitioner's business. Petitioner did not take the risk of engaging his own workers for doing the loading and unloading work. Petitioner sent a representation to the Chairman of the Kerala Headload Workers Welfare Board stating that he may be permitted to engage his own workers. The members of the headload workers union started demanding higher wages. The members of the union took a hostile attitude and the bags of salt were unloaded at a place which was not decided by the petitioner. In one instance the headload workers refused to load the entire consignment. Failure on the part of the petitioner to send the entire consignment caused prejudice to his business and he sustained loss of profit. The petitioner has also narrated several other instance whereby number of headload workers' unions had acted adverse to the interest of the petitioner. Petitioner contended that he does not require the service of the headload workers for loading and unloading activities and he may be permitted to engage his own workers. The petitioner filed the original petition paying for a writ of mandamus or other appropriate writ or direction commanding the first respondent to render adequate police protection and assistance to the petitioner to load and unload the articles in the business premises.
5. Petitioner in O.P No. 11837 of 1996 is also the dealer in raw skin. He alleged that the members of the headload workers' union are causing serious prejudice to his business and he may be allowed to carry on his work with his own workers. The petitioner in this case also sought for police protection.
6. The second respondent in O.P No. 11780 of 1996, namely, Secretary of Barathiya Masdoor Sangom has filed a counter-affidavit. It is denied that the petitioner has got his own workers to do the loading and unloading work. From the very inception of the work petitioner had engaged other workmen. The area of the petitioner's business is brought under the purview of the scheme framed under the Headload Workers Act. The work of loading and unloading is exclusively carried out by the persons who are employees of the pool and there is no direct payment and the remittances are made with the welfare fund and the workmen received payments from the Welfare Fund Board. The petitioner's establishment is very close to the pool office. A number of workers are deputed to work in the petitioners establishment. There was some dispute regarding loading and unloading work. But there was no instance of loading lesser number of pieces than that was required by the dealer of the skin. Petitioner filed a false complaint before the police. It is alleged that the petitioners are not entitled to get the reliefs sought for.
7. In O.Ps Nos. 11780 and 11837 of 1996, the Chairman of the Kerala Headload Workers Welfare Board got himself impleaded. But no separate counter-affidavit it seen filed.
8. Learned Single Judge, before whom the matter came up for hearing, entertained a doubt whether the words “headload workers” defined in S. 2(m) of the Act could Cover a person who is engaged for loading and unloading work in a private establishment. This dispute arose because the main question is whether an owner of the private establishment could engage his own workers for loading and unloading of goods within his premises, if that area is covered by the scheme enunciated under S. 13 of the Kerala Headload Workers Act. According to the counsel for the petitioners, even if the scheme is made applicable to the area, the provisions contained in the Act have no application to any private establishment if they have got their own permanent workers.
9. We heard the counsel for the petitioners, learned Standing Counsel for the Kerala Headload Workers Welfare Board and also the learned Government Pleader. It is contended on behalf of the Government that the Kerala Headload Workers Act is made applicable to certain areas and in such areas all the headload worker are directed to register their names with the Assistant Labour Officer. Learned counsel for the petitioners, on the other hand, contended that the Headload Workers Act has no application to the headload workers who are attached to private employers. The term “headload worker” is defined in the Act. Under Cl. 2(m) of the Act, “headload worker” means:
“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, 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.”
The definition of the word “headload worker” given in the Act does not include a person employed by any employer or contractor privately for his purpose. But it will certainly include the employees of an employer or contractor who is engaged for the purpose of loading and 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 any establishment. A domestic worker is also not included in the definition of “headload worker.” So, a headload worker attached to an establishment is covered by the definition of “headload worker,” irrespective of the fact that he is directly employed by a employer or through a contractor. “Establishment” is defined under Cl.(j) of S. 2 of the Act as “an establishment specified in the schedule and includes the precincts thereof” We do not think that the petitioners' private business such as timber business or shop will come within the term as “establishment.” A schedule is given as an appendix to the Act and the private business such as grocery markets and shops are included in the schedule. Forest supply, timber and firewood depots are also included as item (9) in the Schedule. So the workers attached to the petitioners will not come within the purview of “headload worker” as defined in the Act.
10. Learned Government Pleader contended that the scheme envisaged under the Kerala Headload Workers Rules, 1981, requires that every headload worker is bound to register their names and all are brought under the purview of the welfare scheme. But when the headload workers are not coming within the Act, we do not think that any rules of registration will bring them under the purview of the Act. Reference was made to a series of decisions. In Joy Mathew v. Superintendent of Police [1989 (2) L.L.N 417], it was held that the owner of a factory having his own permanent employees is entitled to do the loading and unloading work. That was a case in which the petitioner has got his own permanent workers to attend to the loading and unloading work. It was held that, in Para. 5, at page 419:
“The Kerala Headload Workers Act applies to headload workers as defined in it. The definition in S. 2(m) makes it clear that a person engaged by an individual for domestic purposes will not fall within the ambit of that section. The petitioner has got his permanent workers to attend to the loading and unloading works in his establishment. He was carrying on the work with them and at no point of time had he engaged any outsider to attend to the loading and unloading work in his establishment. In such a situation, Act 20 of 1980 has no application to the petitioner… So long as he carries out the loading and unloading work with the help of his permanent employees he does not come within the purview of the Headload Workers Act. Consequently, he is not bound to maintain any register as provided by the Act.”
10A. In Malappuram District Head Load Workers Federation v. Kunju Mohammed [1993 (2) L.L.N 164], it was held that, in Para. 1, at page 165:
“…. If any industrialists or an employer wants to employ his own workmen for the purpose of running his industry or for the purpose of his shop or other organisation, he has a right to engage workers of his choice and this right falls clearly from Art. 19(1) of the Constitution of India. The Kerala Headload Workers Act, 1978, is in no way, intended to interfere with the said right. ….”
Similar views were held in Ibrahimkutty v. Superintendent of Police [1991 (2) L.L.N 178]; Abdul Kareem v. Unnikamma [1990 (2) K.L.T 799] and Kochayyan Subrahmaman v. Cochin Cadalas (Private), Ltd. [1993 (2) L.L.N 423].
11. In all these original petitions it is prayed that the petitioners may be allowed to engage their own workers and the headload workers who are attached to any of the establishments in that locality may not interfere with the petitioners' business in their premises. The headload workers attached to various “establishments” have no right to interfere with loading and unloading work that is being carried on at the petitioners' business premises. Petitioners are at liberty to engage their own workers. Such workers are not required to be registered as per the provisions of the Headload Workers Act and Rules. But as and when the petitioners require the services of any headload worker, they can make such requisition and they are bound to pay wages to such workers.
12. In the result, we allow these original petitions and hold that the petitioners are entitled to engage their own workers for their work and the workers attached to third respondent-union in O.Ps Nos. 11780 and 11837 of 1996 and workers attached to fourth respondent-union in O.P No, 11682 of 1996 shall refrain from causing any obstruction to the loading work of these petitioners. If there is any such obstruction, the police shall render adequate protection on the basis of he request made by the petitioners. Any unusual expenses incurred by these police for rendering such protection shall be borne by the petitioners, but the usual expenses shall be met by the police.
13. Original petitions are disposed of accordingly.
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