Hotel Raj International vs Head load Workers Welfare Board

K. Surendra Mohan, J.—The Petitioner is a partnership firm conducting a hotel at Chengannur represented by its Managing Partner.

According to the Petitioner he is conducting a Hotel and Bar in the same premises. He has a number of permanent employees under him working

in various capacities as cooks, waiters, cleaning personnel, persons who do the house keeping work and so on. The Petitioner''s establishment is

engaged in conducting a Hotel and Bar that does not require the services of head load workers. Nor does his establishment undertake any loading

and unloading work in a regular manner. Occasionally provisions are brought to his establishment or bottles of liquor are supplied, which are all

unloaded by his permanent employees as part of their regular duties. In fact, the Petitioner''s case is that his permanent employees attend to

whatever loading or unloading work that may occasionally arise in his hotel, as part of their normal duties. Therefore, he is not an ''employer'' as

defined by the Kerala Head load Workers Act, 1978. Nor is the said Act applicable to him or his establishment.

In spite of the above, the second Respondent issued Exhibit P-1 notice to him under the Kerala Head load Workers (Regulation of Employment

and Welfare) Scheme, 1983 (the ''Scheme'' for short) requiring him to register himself as an employer under para.7 thereof. It is also directed that

he should seek the services of registered Head load workers under the second Respondent for the purpose of attending to the work of loading and

unloading in his establishment. The Petitioner replied to Exhibit P-1 by Exhibit P-2. In Exhibit P-2, the Petitioner explained that there was no

employee in his establishment coming within the scope of the authority of the second Respondent. He also pointed out that his employees were

covered by the provisions of the Kerala Shops and Commercial Establishment Workers Welfare Fund Act and that he was regularly remitting the

contributions payable in respect of his employees, under the said Act. Therefore, he requested for all further action in the matter to be dropped.

However, the second Respondent did not accept the explanation in Exhibit P-2 but issued Exhibit P-4 proceedings intimating the Petitioner that in

all establishments coming within the area of operation of the Scheme, it is the right of the employees registered under para.6A thereof to attend to

the loading and unloading work. He has also informed that the omission to get himself registered as directed in Exhibit P-1 would entail the initiation

of prosecution proceedings against him. Therefore he has been issued with a form for registration along with Exhibit P-4,

According to the Petitioner the activity of the Petitioner is confined to the conduct of a Hotel and Bar where no loading or unloading work arises

in the normal course of his business. The marginal loading or unloading work that arises in connection with his activity extends only for a maximum

of one hour duration every two or three weeks. The said work is attended to by his permanent workers on a casual basis and forms part of their

normal duties. Since the Petitioner is not engaging any head load worker in his establishment, he is not an employer under the Act and is not liable

to be registered. It is pointed out that as a matter of common knowledge the activity of conducting a hotel and bar does not necessitate attending to

head load work. Any such work is rare and occasional, it is submitted.

Advocate Koshy George who appears for Respondents 1 and 2 has filed a statement contending that the dispute in the present case was a

dispute that comes within the scope of the definition of the said term contained in Section 2(h) of the Kerala Head load Workers Act, 1978 (the

''Act'' for short). It is also contended that the Petitioner is an employer coming within the definition of Section 2(i) of the Act. Since the Act itself

has provided a machinery for resolving the disputes that arise under the Act, it is submitted that the Petitioner has to resort to the remedy u/s 21 of

the Act and that this Writ Petition is not maintainable. Particular reliance is placed on a Division Bench decision of this Court Sathyan S. v. Sunila

Sudhakaran ILR (1997) Ker. 549. In the said decision, it has been held that Writ Petitions under Articles 226 and 227 should not be entertained

to decide disputes that can be resolved u/s 21 of the Act since a complete machinery has been provided by the Act for settling such disputes. It is

further pointed out that the said view of the Division Bench has been affirmed by the Full Bench in Raghavan v. Superintendent of Police (1998) 2

KLT 732 (FB). Since the Petitioner does not have any worker in his employment who has been issued with a card as contemplated by Rule 26A

of the Kerala Head load Workers Rules, it is contended that the Petitioner has to comply with the directions in Exhibits P-1 and P-4.

I have heard Mr. N. Ashok Kumar who appears for the Petitioner, Mr. Koshy George who appears for Respondents 1 and 2 and the learned

Govt. Pleader who appears for the third Respondent.

According to the counsel for the Petitioner, since he does not employ or engage any head load worker for any work in his establishment, he is

not an employer under the Act. Since he is not an employer under the Act, para 7 of the Scheme is not applicable to him and Respondents 1 and 2

have no authority to exercise any power under the said provision in relation to his establishment. The Petitioner''s principal activity is that of

conducting a Hotel, a Restaurant and Bar, which do not involve any head load work and as and when provisions are brought to his establishment,

they are unloaded and taken away by his own permanent employees who do the said work also as part of their normal duties. Attending to loading

and unloading work in such a casual and incidental manner would not make any of his employees head load workers, it is submitted. It is also

pointed out by the counsel that the Full Bench in the decision Raghavan v. Superintendent of Police (supra) has overruled the decision in Sathyan

S. v. Sunila Sudhakaran (supra). The counsel for the Petitioner relies on two other decisions, Venkatraman Vs. Sub Inspector of Police, and Obrin

Vs. Sub Inspector of Police, to substantiate his contention that it is not necessary/or him to register his workers under the Kerala Head load

Workers Act and the Scheme there under. Advocate Koshy George on the other hand points out that the decision Sathyan S. v. Sunila

Sudhakaran (supra) has not been completely overruled by the Full Bench but that it has been over-ruled only to the extent it held that even a

petition for Police Protection was not maintainable in view of the machinery provided by the Act for adjudication of the disputes under the Act.

It is also pointed out that the second Respondent being the employer in respect of unattached head load workers, the present dispute between

the second Respondent and the Petitioner would be a ''dispute'' u/s 2(h) of the Act.

The term ''employer'' has been defined in Section 2(i) of the Act as follows:

(i) ''employer'' means,-

(i) in relation to a head load worker engaged by or through a contractor, the principal employer;

(ii) in relation to a head load worker who is not employed or engaged by any employer or contractor, the Committee appointed u/s 18.

Explanation: For the purpose of this sub-clause ""head load worker"" means a person registered as head load worker under the Scheme, and whose

wages are paid by the employer or contractor through the Committee concerned.

(iii) in relation to any other head load worker, the person who has ultimate control over the affairs of the establishment in or for which the head load

worker is employed and includes any other person to whom the affairs of such establishment are entrusted, whether such person is called an agent,

manager or by any other name prevailing in such establishment.

Section 2(m) defines head load worker as follows:

head load worker"" means a person engaged or employed 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 trolley 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 trolley any article or articles for wages, but does not include a person engaged by an individual for domestic purposes;

Explanation: For the purpose of this clause, a person engaged by an individual for domestic purposes"" means any person engaged by an individual

for loading and unloading of

(a) any article for construction of a building for his own residential purpose;

(b) any article in connection with marriage or other family function in his residence or in places where marriage or other family functions are

conducted;

(c) any house-hold articles including furniture in connection with the shifting of a dwelling house of a person;

(d) any article or articles for carrying out any: agricultural operations in his land not exceeding two hectares;

(e) any articles exclusively for his personal use and not for any industrial or commercial purposes.

Paragraph 7(1) of the Scheme reads as follows:

Registration of Employers--

(1) Every employer in the area who engages or employs head load workers in or for an establishment for trade or business either directly or

through a contractor shall register their names with the Committee along with such details and in the manner as may be specified by the Board

within 30 days from the date of commencement of the functional operation of the Scheme in an area or within such further time that may be

allowed by the committee not exceeding 45 days.

A Reading of the above provisions show that para 7 of the Scheme applies to every employer in the area who engages or employs head load

workers in/for an establishment for trade or business. Therefore, an employer who does not engage or employ head load workers cannot come

within the scope of para 7 of the Scheme. The Petitioner being a person who does not employ or engage a head load worker either directly or

through a contractor for his trade or business cannot come within the ambit of para 7. An employer is defined as meaning, in relation to a head load

worker or through a contractor, the principal employer and, in relation to a head load worker who is not employed or engaged by any employer or

contractor, the committee appointed u/s 18 of the Act. Explanation to Sub-clause (2) of the definition makes it clear that the expression ''head load

worker'' means a person registered as head load worker under the Scheme and whose wages are paid by the employer or contractor through the

committee concerned. Therefore, the head load worker in relation to whom a person would become an employer under the Act has to be a

registered head load worker. Consequently, only a person who employs or engages a registered head load worker would come within the scope

of the definition of employer contained in the Act. The definition of a head load worker makes it clear that a head load worker is a person who is

engaged or employed directly or through a contractor in/for an establishment whether for wages or not for loading or unloading or carrying on head

or person or in a trolley any articles or articles in/from or to a vehicle or any place in such establishment and includes persons employed or engaged

by any employer or through a contractor provided he is engaged in loading or unloading work. The definition makes it clear that the head load

worker contemplated is a person who attends to head load work alone and that the same does not refer to a general worker who attends to head

load work also in the course of other duties and responsibilities. The above position has been recognized by the Full Bench in Raghavan v.

Superintendent of Police (supra). The Bench has dealt with the aspect in para 21 in the following words:

Yet another point raised before us was the case of workers employed in the establishments, who are doing the work of loading and unloading

along with other duties. Learned Counsel for the Petitioners could contend that in such circumstances, the workers cannot be treated as head load

workers coming under the definition of that term under the Act. We do not think that this is an issue where an answer in general can be given. It

will depend on the facts of each case. If the worker is doing loading and unloading work regularly in the establishment he cannot be taken out of

the purview of the Act only for the reason that he is discharging some other duties also. On the other hand, if he is principally employed to carry on

the work other than loading and unloading and if occasionally he does the work of loading and unloading, it may not be possible to treat him as a

head load worker coming with the definition. But, as mentioned earlier, it will depend on the facts of each case.

The Full Bench has gone on to consider whether the machinery provided by the Act should be resorted to even for settling the issue whether a

particular worker is a head load worker or not even when such disputes give rise to a law and order problem. In para.22 this Court has observed

as follows:

When such an employer approaches this Court under Article 226 of the Constitution seeking protection of person and property of the employer as

well as willing workers, this Court will be justified in granting direction to the police to give protection, if circumstances so warrant. One such

consideration can be irreparable injury that would be suffered by the employer and/or the willing workers. There may be other circumstances also

which would justify grant of such direction in the facts of particular case.

Therefore, it is not an absolute rule that an employer who disputes his liability under the Act should take recourse to the remedy u/s 21 of the Act.

In the decision Obrin v. Sub Inspector of Police (supra) the question was whether the work of loading and unloading in an industrial unit which

is only incidental to the main work could be got attended to by the permanent workers of the establishment who were not head load workers.

Placing reliance on the very same observations of the Full Bench in Raghavan v. Superintendent of Police (supra) quoted above, a Division Bench

of this Court has held that permanent workers of an establishment who attend to head load work only incidentally are not workers coming within

the definition of ''head load worker'' under the Act. The Division Bench has summed up the position in the following words in para.5 of the said

decision:

Thus in a case as the present, where loading and unloading work is only incidental to the main work of the industrial unit, the worker attached to

the employer doing such loading and unloading work is not a head load worker and, therefore the 1978 Act or the Rules or the Scheme do not

apply to such worker. If so, the employer is not bound to engage a head load worker, much less, a registered head load worker of the 2nd

Respondent Union, for doing the loading and unloading work in the establishment where loading and unloading work is incidental to the main work.

In other words, the 2nd Respondent cannot put forward any right to engage its workers for the loading and unloading operations in the Petitioner''s

unit.

Accordingly this Court has held that the work of loading and unloading in an industrial unit, that is ancillary or incidental to the main work of the

permanent workers employed by the unit can be attended to by them, though they are not head load workers under the Act.

While considering a similar issue, another Division Bench of this Court has held in Venkatraman v. Sub Inspector of Police (supra) that a

person who may casually attend to loading and unloading work in an establishment is not a head load worker under the Act. The Division Bench

has quoted with approval the judgment in Obrin v. Sub Inspector of Police (supra) and has held that, the Act does not mandate that every work of

loading and unloading should be attended to only by registered head load workers. After referring to the object of the enactment and the various

provisions contained therein, M. RAMACHANDRAN, J. has made the following observations:

The unorganized sector of employees was being extended a protection, by providing for regularity of work. It did not intend to snatch away a

portion of work from regular workmen and in fact dealt hardly with any issues in respect of such group. In all appearances it does not intend to

cover engagement of casual nature, and it is not as if every activity of loading/unloading in the scheme notified areas should be carried out by

workers included in the scheme. We are however compelled to observe that precision in the prescription is not a quality claimable by this special

statute. It is a bagful of provisions, without bearing in mind the workability of the bundled ideas.

On the basis of the above observation, the Division Bench has concluded the issue in the following words:

The cumulative circumstances, therefore, compel us to come to a conclusion that the demand for grant of work as coming from Respondents 4 to

6 has no legal basis. The Petitioner will have the right to carry on the work, including unloading work, by engaging his own workmen. Neither the

employer nor the employees are obliged to register themselves under the Act, Rules or Scheme. In case obstructions come from third persons, the

police shall render adequate assistance as the circumstances may require.

Therefore, neither the employer nor the employees are entitled to register their names where the work of the establishment is of a casual nature or

incidental or ancillary to the main work. From the wording of para 7 of the Scheme quoted above, it is clear that the said provision also applies

only to an ""employer who engages or employs head load workers"". The Petitioner being not an employer under the Act, the above provision has

no application to him or to his establishment. Therefore, Exhibits P-1 and P-4 are without jurisdiction and are liable to be set aside.

For the foregoing reasons this writ petition is allowed. Exhibits P-1 and P-4 are quashed. All further proceedings of the Respondents based on

or pursuant to Exhibits P-1 and P-4 to make the provisions of the Kerala Head load Workers Act, 1978 and the Scheme there under applicable

to the Petitioner''s establishment are also held to be unsustainable. No costs.