Jawahar Lal Gupta, C.J.

Does the employer have the right to employ persons of his own choice for loading and unloading the goods? This question was answered by a Division Bench of this Court in Ibrahimkutty V. Superintendent of Police, 1991 (1) KLT 829 in the affirmative. Speaking for the Bench, Chief justice Malimath had expressed the view that the right on an employer "to carry on his business by engaging laborers of his own choice cannot be denied to him." This view was reiterated by Chief Justice Jagnnadha Rao (as High Loardship then was) in Kochayyan Subramanian v. Cochin Cadalas (P) Ltd., 1992 (2) KLT 269. It was observed that "on a perusal of the provisions of the Headload Workers Act and the Rules, we do not find any provision therein conferring any preferential right for employment on the registered headload workers, in the absence of any scheme made under Sec. 13". When this matter was placed before the Division Bench, Justice Mohan Kumar had followed the view taken by the two Division Benches. However, Rajendra Babu J. had expressed reservations. Thus, the matter was ultimately referred to a Full Bench.

2. Rahendra Babu, J. has considered the matter. On a perusal of the order, I regret my inability to agree with the order proposed by him. Hence, this separate note.

3. The facts have been elaborately noticed by his Lordship These may briefly be recapitulated.

4. The appellant is the President of the Mavelikkara Taluk Head Load Workers Union. Respondent Nos. 3 to 5 are traders. They have their shops at Puthiyakavu, Mavelikkara, Alappuzha District. The appellant and its members obstructed the work of loading and unloading at the shops run by respondent Nos.3 to 5. Thus, the said respondents approached this Court through a petition under Article 226 of the Constitution viz., O.P. No. 13026 of 1993. They prayed for the issue of a direction to the Police to give them adequate protection and to restrain the members of the appellant's union from interfering with the work of loading and unloading at their shops. This petition was allowed vide order dated July 2,1994. It was held that "it is not open to the fourth respondent or members of the union to physically obstruct the petitioners (now respondent Nos.3 to 5) from carrying on the unloading work by engaging workers of their choice as the scheme is not made applicable to the area." Respondent Nos. 1 to 3 in the said petition were "directed to give necessary protection to the petitioners to carry on the unloading work in their shops by engaging workers of their own choice." However, "the members of the fourth respondent-union" were left free to agitate their claim, if any for continued employment to do the unloading work by the petitioners before the appropriate authorities that in accordance with the provision contained in the Kerala Headload Workers (Regulations of Employment and Welfare) Scheme, 1983."

5. In pursuance to the above order, the appellant filed an application under sec. 21(4) before the District Labour Officer. Vide order dated March 15, 1995, a copy of which has been produced as Ext.P2, the Authority directed the employers, viz. respondent Nos. 3 to 5 to re-employ the headload workers. The respondents filed an appeal Under Sec.21(6). They also prayed for stay. However, it appears that no order on the stay petition having been passed, the said respondents approached this Court through a petition under Article 226 of the Constitution. It was registered as O.P.No.12524 of 1995. They prayed that the order dated March 15, 1995 be quashed.

6. The matter was considered by a learned single Judge Vide judgment dated May 29, 1996, P.K. Balasubramanyan, J. (as His Lordship then was) allowed the Writ Petition and quashed the impugned order. It was held as under:

"I find that this court has held that under the Headload Workers Act, the members of the third respondent union had no right to insist on doing the work and that the scheme was also not applicable. As can