Thomas K.D. and Others vs District Labour Officer and Others

These review petitions are filed against the common judgment in W.A. Nos. 285 of 1997 and 289 of 1997. The appellants are the review petitioners. The appellants are conducting rice mills. Their case was that headload workers who belonged to respondents Nos. 3 to 6 were obstructing their work and they wanted police protection. When they approached this Court earlier for police protection, this Court granted police protection subject to the right of the union to take the dispute before the District Labour Officer, Perumbavoor under the Headload Workers Act. The original authority as well as the appellate authority found that the appellants had engaged 29 headload workers belonging to the union of the respondents and the authorities directed that they should be engaged for the purpose of unloading by the appellants. Challenging the orders of the statutory authorities, the appellants filed original petitions. The decisions of the statutory authorities were confirmed by the learned single Judge. Challenging that judgment, these writ appeals were filed. The writ appeals were dismissed by the common judgment dated December 16, 1987. In the W.A. the Division Bench after considering the order of the statutory authorities confirmed the findings of the authorities that the appellants did not engage any workmen for the purpose of un-loading. It also agreed with the findings that the 29 workers of the respondents'' unions were engaged for unloading by the appellants. This was on the basis of exhibits P-15 and P-16. The appellants contended before the Division Bench that the alleged workmen had no right under the Headload Workers Act and hence the appellants did not have any obligation to engage them. This is on the basis that the scheme under the Headload Workers Act had not been extended to the area where the mills are situated. This aspect was considered in paragraph 6 of the judgment in the appeal. The Bench referred to Section 21 (7) and held that their engagement had to be continued until they were terminated in accordance with law. In the judgment also we directed the disbursement of Rs. 2 lakhs, which was deposited with the Joint Labour Commissioner towards wages for 29 workmen. It is the above judgment that is sought to be reviewed. Learned senior counsel for the petitioners submitted that he urged the contentions before the Division Bench that the workmen concerned were not employed by the appellants. At best it can be stated that they were only engaged. There was no contract of service but only contract for service. He also submitted that there are many decisions of this Court and the Supreme Court, which distinguished the "persons engaged" and the "persons employed". His argument was that the headload workers who are now directed by the Court to be engaged by the appellants cannot be said to be in the service of the appellants. These headload workers are working not only for the appellants but for other rice mill owners also. Hence, the appellants cannot be compelled to employ them. Further, he submits that there is no employee-employer relationship between the appellants and the alleged workmen. Before we discuss further, we wish to state that there is a mistake in the judgment regarding the total amount in deposit. Total amount of deposit is Rs. 3.07 lakhs. So also some workers have filed C.M.P.No.2956 of 1997 stating that they are giving up their claims against the appellants. This was omitted to be recorded earlier. According to us, the amount of Rs.2 lakhs mentioned in the judgment is not correct. It is corrected as Rs.3.07 lakhs. So also C.M.P. No. 2437 of 1997 is allowed recording that the petitioners in the C. M. Ps. Have given up their claims against the appellants.

The main argument advanced by counsel for the petitioners is that this Court has not looked into certain decisions cited by him. Learned counsel referred to the decisions in E. S. I. Corporation v, M, C, Punnoose 1980 KLT 476 in E.S.I. Corporation v. Ayruvedic I.C.P. 1980 (56) FJR 53 (Ker), E.S.I. Corporation v. P.K. Muhammed (P) Ltd. 1995 2 KLJ 515 in Pun Urban Co-operative Bank v. Mad-husudan Sahu in Francis v. Kerala Headload Workers Welfare Fund 1997 2 KLT 883 and in ESI Corporation v. P.R. Narahari Rao 1987 (70) FJR 160 (Ker). Of these ESI Corporation v. P. R. Narahari Rao, (supra), E.S.I. Corporation v. P.K. Muhammed (P) Ltd., (supra) E.S.I. Corporation v. Ayur-vedic I. C.P., (supra) and E.S.I. Corporation v. M.C. Punnoose, (supra) deal with the scope of definition of employees under the Employees'' State Insurance Act. In those cases, it was stated that unless the worker was exclusively working in the establishment of the employer, he cannot be said to be an employee coming within the definition of the Employees'' State Insurance Act. The decision in Pun Urban Cooperative Bank v. Madhusudan Sahu, (supra), related to the case of contract for services. There a goldsmith was being engaged by the Bank for the purpose of testing gold ornaments offered to be pledged to the bank. The Supreme Court found that the bank have no control over how the work is to be done and hence there was no employer employee relationship.

But in this case, we are not concerned with such position. Learned counsel contended that the use of the word "employment" in the judgment is not correct. It may not be correct in the strict sense. But what the respondents contend is that they are headload workers and they had been engaged by the appellants. "Headload worker" defined u/s 2(m) of the Headload Workers Act is as follows:

"2(m). ''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 word "principal employer" is defined in Section 2(p) of the Act. It is as follows:

"2(p). ''principal employer'' means an employer who engages a headload worker by or through a contractor in any establishment".

Thus, the Headload Workers Act has given importance to the word "engagement" than to "employment". "Dispute" is defined in Section 2(h). There the termination or discharge of headload workers are included. Further, the concept under the Headload Workers Act does not mean that the headload workers should be under the exclusive services of the employer. That is what exhibits P-15 and P-16 state. These workers are engaged for the purpose of unloading and whenever there is work for unloading, these workers have to be engaged. In the decision in Francis v. Kerala Headload Workers Welfare Fund, (supra), also this position is highlighted. It is stated therein as follows at Page 887:

".... 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 an employer or through a contractor''.

In that case, this Court held that the petitioners'' private business such as timber business or shop will not come within the term "establishment". But here the facts are different. All the proprietors who have rice mill in that area agreed with the unions to engage their headload workers. This is a particular situation only available in the State of Kerala in the wake of the promulgation of the Kerala Headload Workers Act.

In the above view of the matter, we do not find anything wrong in our judgment by which the orders of the statutory authorities are upheld. The contention regarding the life of exhibits P-15 and P-16 was considered by us in the judgment and hence it is not necessary to consider the same.

The last paragraph in the judgment will be modified as follows:

During the pendency of the appeals, the appellants hi both the appeals together deposited Rs.3.07 lakhs with the Regional Joint Labour Commissioner. As per the order of the statutory authorities the appellants are bound to engage 29 workmen. But of these 19 workmen who are the petitioners in C.M.P. No.2437 of 1997 in W.A.No.295 of 1997, have given up their claims against the appellants. Hence, the appellants are bound to give engagement to the balance 10 workers for the purpose of unloading as per exhibit P-16. The 10 workmen are also entitled to withdraw the arrears of wages due to them from the date of the direction to reengage them. There will be a direction to the Regional Joint Labour Commissioner to determine the amount due to the 10 workmen.

With the above modifications, the review petitions are dismissed.