[Kerala Headload Workers Act] Employer Is Free To Engage Skilled Persons Under Section 9A If Special Assistance Is Required: Kerala High Court

The Kerala High Court recently held that if the work of loading and unloading requires assistance of skilled persons, an employer can engage persons with the requisite skill or machinery and this right of the employer is protected under the proviso to Section 9A of the Kerala Headload Workers Act, 1978.

A single bench Justice N Nagaresh observed,

“The proviso to Section 9A would make it clear that in respect 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 can be done by an employer by engaging persons having such skill or by the machinery as the case may be. It is the specific case of the petitioner that the Transformer in question is being unloaded using a machinery. The transportation of machinery requires due diligence and it has to be done by the skilled workers. In view of the proviso to Section 9A, the petitioner has a right to get the work done by using machinery and skilled workers.”

The Court was considering a plea by a Rajasthan based company, Jatan Constructions Pvt Ltd that has been engaged for construction of the Cochin Cancer Research Centre, Ernakulam. The Petitioner claimed that when the Petitioner tried to unload transformers using a crane at the construction site, the Headload Workers Union obstructed the unloading and demanded ‘Nokku kooli’. The Petitioner argued that specialised instruments are to be unloaded and skilled workers are required for the same.

The Petitioner had approached the Court seeking protection for its workers to unload the transformers with the aid of machinery at the construction site, without any obstruction from the Headload Workers Union.

The counsel for the Headload Workers Union argued that a Memorandum of Settlement had been signed by the authorised signatory of the Petitioner in the presence of the District Labour Officer regarding construction area in Ernakulam District. The Memorandum of Settlement includes heavy machinery like transformers. In light of the Settlement, the Petitioner has to engage the registered headload workers under the pool, it was argued.

It was also argued by the Respondent that in the area in question, the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 had been operationalized. Hence registered headload workers in Pool No.5 have the right to do any loading and unloading work in the area. It was also contended that the Petitioner had applied for registration as an employer under the Kerala Headload Workers Welfare Fund.

The Standing Counsel for the Kerala Headload Workers Welfare Fund Board, submitted that the registered headload workers under the union were being engaged by the Petitioner from time to time.

“Engagement of registered workers from the pool cannot be a reason to contend that the petitioner cannot load or unload machinery where the petitioner has the protection of the proviso to Section 9A of the Kerala Headload Workers Act, 1978. The fact that the petitioner has applied for registration as employer under the Kerala Headload Workers Welfare Fund cannot take away the right of the petitioner under Section 9A.” the Court held.

Therefore the Court directed the Station House Officer, Kerala Headload Workers Welfare Fund Board and Superintendent of Cochin Cancer Research Center to provide necessary protection to the Petitioner for unloading the Transformer and other items which required the aid of machinery.

However, the Court also clarified that the Union was free to raise any dispute before the Conciliation Authorities under Section 21A of the Kerala Headload Workers Act.

Counsel for Petitioner: Advs. Deepu Thankan, Ummul Fida, Lakshmi Sreedhar, Lekshmi P Nair, Namitha K M

Standing Counsel For Kerala Headload Workers Welfare Fund Board: Adv. S Krishnamoorthy

Government Pleader: Adv. Rajeev Jyothish George

Counsel for Respondent: Advs K R Vinod, M S Letha

Case Title: M/S Jatan Constructions Pvt Ltd V. Station House Officer

Citation: 2023 LiveLaw (Ker) 281

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