IMPORTANT POINT
Establishments are free to employ skilled and semi-skilled persons for dealing with delicate and sophisticated articles, and any prevention or obstruction to this would lead to infringement of the right to livelihood under Article 21 of the Constitution of India.

JUDGMENT :

AMIT RAWAL, J.

1. Employers, dealing with the business of electronic equipments and appliances which are delicate and sophisticated as per the Explanation II to Section 2(m) of the Kerala Headload Workers Act, 1978, employed different set of employees for undertaking the work but the Unions in the scheme area registered with the Board obstructed giving cause to the employers to approach this Court in writ petition Nos.28462 of 2020, 12363 of 2021 and 13779 of 2021. Few of the other petitioners were dealing with mobile phones, electronic equipments and appliances.

2. Learned Single Judge considering the predicament of the petitioners, allowed the writ petitions by permitting the employers to engage their own specialized workers, then from the Union in the scheme area and also issued directions to provide police protection. Appeal has been preferred by members of the Union against the common judgment rendered including W.P No. 28462/2020 inter alia by raising a question of law that the home appliances such as television, refrigerator, microwave oven, electronic kitchen ranges, mobile phones, electronic tabs etc., are not delicate and sophisticated items as claimed by the writ petitioners, much less do not require any special skill and training as claimed to have acquired by the permanent employees of the employer. The headload workers in a scheme area belonging to the Union can also undertake such tasks. In case the employer is allowed to engage such employees it would be discriminatory and taking away the livelihood.

3. On the other hand, learned counsel representing the employer submitted that pith and substance of the judgment has been on the ratio decidendi culled out in the judgment in Balakrishnan A. vs. Circle Inspector of Police, North Police Station, Alappuzha and Others, 2020 (6) KLT 593 and Safa System and Solutions vs. Station House Officer, Palarivattom and Others, 2018 (3) KLT 9 wherein it has been declared that the articles delicate and sophisticated can be moved and dealt with by the skilled labourers and not by the headload workers registered under the Act and the members of the Union. The judgment has become final as there is no appeal.

4. We have heard the learned counsel for the parties and appraised the paper book.

5. The definition in Section 2(m) of the 'headload workers' along with the Explanation I and II reads as:

“2(m) “headload worker” means a person employed or 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 or stacking articles, excluding delicate or sophisticated articles, in a vehicle or unloading by sliding using manual labour from a mechanically propelled vehicle or a person who does in connection with the work in ports, the works like filling of fertilizers in sacks, weighing and stitching of sacks, bundling, breaking seals of container, stacking and includes any person not employed by any employer or contractor but engaged in the loading and unloading or carrying on head or person or in a trolly any article or articles for wages in or from or to a vehicle, or any place in such establishment or stacking articles excluding delicate or sophisticated articles in a vehicle or unloading by sliding using manual labour from a mechanically propelled vehicle but does not include a person engaged by an individual for domestic purposes.

Explanation I - For the purpose of this clause “a person engaged by an individual for domestic purposes” means any person engaged by an individual for:

(i) shifting including transportation of furniture, personal effects and other household articles for domestic use.

(ii) working in connection with the shifting of articles of a dwelling house of a person including work in connection with religious or social or public functions.

(iii) cutting, removing, shifting and transpor