SUNIL KUMAR T.S. Vs. ZIYAD

JUDGEMENT

(1.) These writ petitions are filed by the owners of certain small scale industrial units for Police protection. The petitioners' case is that these industrial units are small units engaged in the manufacturing of products. They have their own employees. They engaged permanent workers to do the incidental loading and unloading works related to the units. According to them, none of the units require any permanent headload worker to do the loading and unloading work. Apart from that, the petitioners would submit that the petitioners' establishments are not covered by the definition of 'establishment' as referrable under Section 2(j) read with the Schedule under the Kerala Headload Workers Act, 1978.

(2.) The petitioners approached this Court for Police protection when obstructions are caused to the petitioners while loading and unloading at the instance of the respondent Union. According to the petitioners, the permanent workers engaged in manufacturing and other related work used to do loading and unloading if so required in the establishment. This nature of work is incidental to the main activity of the employee.

(3.) The dispute in this case is in regard to the nature of engagement of the permanent employees of the petitioners. The petitioners, placing reliance on the Larger Bench decision of this Court in Theresa Jose vs. Sub Inspector of Police (2015(1) KLT 485), submit that when permanent workers are engaged for loading and unloading as incidental and connected to the operation, the Kerala Headload Workers Act will not apply to such establishment. The Larger Bench, after referring to Section 2(j) and item No.5 to the Schedule of Kerala Headload Workers Act, 1978, held that the first condition for being an establishment under item No.5 is that the workers shall carry operations of loading and unloading as the main and predominant operation in addition to the incidental and connected operations which are not primary. Apart from that, the petitioners have a case that it is not an establishment.