Headload Workers Act : Mobile Phones cannot be Loaded and Unloaded by Persons who are not Trained [Case Law]

Headload Workers Act 1978 (Kerala) - Ss. 2(m) Explanation-II 9A - “headload worker” - Engaging the services of headload workers - 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. We are therefore of the considered opinion that the petitioner firm is entitled to protection as sought for. The petition is allowed directing respondents 1 to 3 to afford adequate, sufficient and meaningful protection to the petitioner firm for loading and unloading of mobile phones in their concern without any let or hindrance from the members of the 5th respondent's Union. No order as to costs.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.VINOD CHANDRAN & ASHOK MENON, JJ.
W.P.(C) No. 15157 of 2018
Dated this the 1st day of June, 2018
PETITIONER(S)
SAFA SYSTEM & SOLUTIONS, REPRESENTED BY THE MANAGING PARTNER, FAIZAL, SAFA ARCADE, BEHIND HOLIDAY INN, KANIYAPPALLY ROAD, CHAKKARAPPARAMBU, VENNALA P.O., ERNAKULAM DISTRICT.
BY ADV.SRI.K.REGHU KOTTAPPURAM 
RESPONDENT(S)
1. THE STATION HOUSE OFFICER, PALARIVATTOM POLICE STATION, PALARIVATTOM, ERNAKULAM - 682 025.
2. THE CIRCLE INSPECTOR OF POLICE, PALARIVATTOM, ERNAKULAM - 682 025.
3. THE CITY POLICE COMMISSIONER, ERNAKULAM CITY, KOCHI - 692 025.
4. THE CHAIRMAN, KERALA HEADLOAD WORKERS WELFARE FUND BOARD, POOKKARANMUKKU, ERNAKULAM - 682 035.
5. THE SECRETARY, HEADLOAD AND GENERAL WORKERS UNION (CITU), B.T.R BHAVAN, PALARIVATTOM, ERNAKULAM - 682025.
6. THE DISTRICT LABOUR OFFICER, CIVIL STATION, ERNAKULAM-682030.
R1-R3,R6 BY SR.GOVERNMENT PLEADER SRI.P.P.THAJUDHEEN R4 BY SRI.S.KRISHNA MOORTHY, SC, KHWWB R5 BY ADV. SRI.V.P.PRASAD 
J U D G M E N T
Ashok Menon, J.
The petitioner is before us seeking police protection from the alleged threat held out by the 5th respondent-Union and its members.
2. The petitioner is a firm engaged in the business of purchase and sale of mobile phones of high quality. Ext.P1 is the registration certificate of the firm and Exts.P2 to Ext.P4 are the tax invoices evidencing purchase of the phones in bulk from different companies. The phones are transported to the petitioner's godown. The firm also supplies mobile phones in different consignments addressed to the consumers at different places. Ext.P5 series are copies of such invoices. The mobile phones are loaded and unloaded by the petitioner firm as delicate sensitive equipments, to be handled with utmost care by experienced persons engaged by the petitioner. The consignments are to be unloaded and then despatched to different consumers in closed vehicles, which is done by the permanent staff of the petitioner firm. Dropping of parcel of mobile phones or handling negligently will cause huge loss to the firm. Hence, the petitioner cannot engage the general headload workers for loading and unloading of mobile phones. The 5th respondent-Union and its members approached the petitioner firm and demanded loading and unloading work for their members and they even caused obstruction to the work being done by the permanent workers of the petitioner firm. This resulted in stoppage of business, causing huge loss to the firm. Ext.P6 complaint was filed before the 1st respondent seeking police protection for loading and unloading of mobile phones. But no action has been taken. The petitioner, therefore, prays that sufficient and adequate protection may be afforded to the petitioner firm by issuing specific directions to respondents 1 to 3 so as to enable the firm to continue their business of mobile phones.
3. The 5th respondent has filed a counter affidavit, inter alia, denying the averments in the petition. It is stated that the area is a scheme covered area and hitherto the loading and unloading of mobile phones, which comes in large packages, were being carried out by the loading workers registered with the pool. They are also doing similar work in the other mobile shops in the locality. The 4th respondent had approached the petitioner to get his concern registered under the Kerala Headload Workers Act 1978 ('the Act' for short). This has prompted the petitioner to approach this court with this writ raising false averments against the party respondents.
4. The petitioner has filed a reply affidavit stating that his concern is dealing with sensitive, delicate and sophisticated articles like mobile phones as explained in explanation-II to Section 2(m) of the Act, excluded from the purview of the Act. The mobile phones are very costly as could be seen from Ext. P7. Loss or damage to the equipments would be very dear to the petitioner.
5. We heard the learned Senior Government Pleader appearing for respondents 1 to 3 and 6, the learned Standing Counsel for the 4th respondent Board and the Counsel appearing for the 5th respondent.
6. The learned Standing Counsel for the 4th respondent submits that the area in dispute is a scheme covered area and that, there are several workers in the pool as per the Scheme and excluding them from loading and unloading work of mobile phones in the establishment of the petitioner, would deprive them of considerable amount of work and they would be rendered jobless.
7. The learned Counsel for the 5th respondent submits that the members of the Union would carry out the work with due diligence and care and that the mobile phones are delivered in big packets, which would require headload workers to unload as also, despatching of mobile phones to different areas is done.
8. The learned Counsel appearing for the 5th respondent relies on the decision reported in Amma Granites and Tiles v. District Labour Officer, 2016 (3) KLT 625, to argue that in an area covered by the Scheme, the headload workers defined under S.2(m) of the Act, have a right to get employment unless the employer has his own employees engaged for loading and unloading registered under Rule 26A of the Rules. The learned Counsel for the 5th respondent also relies on the decision reported in Raghavan v. Suprintendent of Police, 1998(2) KLT 732 (FB), in support of his argument that in a Scheme covered area, a headload worker cannot be engaged unless he is registered under Rule 26A of the Kerala Headload Workers Rules.
9. In para 18 of Amma Granites it is held thus:- 
“18. From the above mentioned statutory provisions, it is evident that the predominant object of the Act is to afford social and legal protection to the headload workers and also to put in place the measures for their welfare. However, it can be seen from the very definition of “headload workers” itself that certain persons doing loading and unloading work by carrying load on head or person or otherwise, in certain situations, cannot be treated as headload workers covered by the Act. More precisely stated, a person engaged by an individual for domestic purposes, which has been explained in Explanation-I to Section 2(m) of the Act, shall not be regarded as a headload worker and therefore he cannot claim any benefit under the Act. Similarly, a person engaged for handling delicate or sophisticated articles, explained in Explanation-II to the above definition clause, is also excluded from the purview of the Act. Likewise, in an area where the Scheme is not made applicable, no provision of this Act or the Rules would compel an employer to engage a headload worker having registration under Rule 26A of the Rules.” 
10. The learned Senior Government Pleader has produced a copy of Gazette Notification No.21469/Leg.C3/2017/Law dated 07-04-2018. In this notification, after Section 9, a new Section 9A, has been introduced to the Kerala Headload workers Act, 1978 by way of amendment. Relevant portion of that Section and the proviso reads thus: 
“9A. Engaging the services of headload workers.- (1) Subject to the provisions in this Act, an employer shall engage a headload worker registered under the Act in connection with the work of his establishment: Provided that in the case of works which require 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, as the case may be.” 
11. 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.
We are therefore of the considered opinion that the petitioner firm is entitled to protection as sought for. The petition is allowed directing respondents 1 to 3 to afford adequate, sufficient and meaningful protection to the petitioner firm for loading and unloading of mobile phones in their concern without any let or hindrance from the members of the 5th respondent's Union. No order as to costs.
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