The right to register as headload workers is grounded in the employer's willingness to engage them and does not depend on their prior work status.

JUDGMENT

Applications for registration as headload workers filed by petitioners 2 to 5 were rejected by the registering authority for reasons including the often repeated statement that existing registered headload workers attached to the welfare board will be prejudicially affected. The joint appeal preferred by the workers together was also rejected stating the same reason. The applicants for registration as headload workers along with their employer has approached this Court challenging the order rejecting their applications.

2. First petitioner is carrying on the business in sale of cement products, concrete windows, door frames, decorative pillars, clay tiles, ceramic tiles etc, under the name and style ‘Leyon Enterprises’ at Adoor, Pathanamthitta District, in Kerala. He also runs a unit for manufacturing the aforesaid products. Petitioners 2 to 5 are the permanent workers employed by the first petitioner. The establishment of the first petitioner is situated in a scheme covered area. The employer had expressed his willingness to engage petitioners 2 to 5 for the loading and unloading work in his establishment and the workers also agreed to offer their services as headload workers. It was on the said mutual consent that applications were filed by petitioners 2 to 5 for registration as headload workers.

3. In fact, first petitioner's claim that these employees who are seeking registration as headload workers were regularly engaged for loading and unloading work, even prior to the year 2017. First petitioners claimed that he was maintaining all registers and other records relating to employment of the permanent employees. It is further pleaded that the employees of the first petitioner who were doing loading and unloading work, were not registered earlier, since the area was not an area covered under the scheme notified under the Kerala Headload Workers Act, 1978 (for short the Act). However, applications were filed by petitioners 2 to 5 on 02-12-2019 for registration as evidenced by Ext.P4, and while the applications were pending, a show-cause notice was issued to the first petitioner proposing penal action for not registering under the scheme and for not utilizing the registered workers for loading and unloading works.

4. In the meantime, by order dated 27-01-2020, the second respondent rejected the applications of petitioners 2 to 5. While rejecting the applications, it was observed that the predominant work of the employees of the first petitioner was not headload work and that if registration is granted for the permanent workers of the first petitioner, the existing registered headload workers will lose their employment opportunities and further, there was no necessity to have four permanent workers employed for headload work, when the loading and unloading work in the establishment was only once a week. It was also observed that since the employer had not maintained the records required under law, there was no evidence to show that the first petitioner had employed any headload workers in his establishment.

5. The appeal preferred by petitioners 2 to 5 before the first respondent was rejected by Ext.P15 order dated 18-05-2020. The reasons were more of a repetition of the order of the registering authority. It was stated that the Act was enacted only for the benefit of headload workers and that even though applicants had given statements to the effect that they were doing headload work in the establishment, the appellate authority was satisfied that the predominant work of the applicants was not headload work and further that if registration was granted to the applicants, it will prejudice the existing job opportunities of the attached workers of the welfare board.

6. A counter affidavit has been filed by the first respondent stating that the establishment of the first petitioner is situated in a area covered under the headload workers scheme and that the attempt to obtain registration under rule 26A is with an intention