ACT 10 OF 2002

THE KERALA LOADING AND UNLOADING ( REGULATION OF WAGES AND RESTRICTION  OF UNLAWFUL PRACTICES)ACT, 2002 [1]

 An Act  to regulate the wages and to restrict unlawful practices connected  with loading and unloading and transportation of goods and articles and for matters connected therewith.

       Preamble .-WHEREAS it is  expedient to regulate the wages and to restrict unlawful practices connected with loading and unloading and transportation of goods and articles and for matters connected therewith ;

       BE  it enacted  in the Fifty-Third year of the Republic of India as follows:-

CHAPTER 1

PRELIMINARY

      1. Short title, extent and commencement :- (1) This Act may  be called the Kerala Loading and Unloading (Regulation of wages and Restriction of Unlawful Practices) Act, 2002.

        (2) It extends to the whole of the State of Kerala.

                    (3) It shall come into force on such date  as the Government may by notification in the Official Gazette appoint and different dates may be appointed for different areas and for different provisions of  this Act.

             2. Definitions:-  In this Act, unless the context otherwise requires, -

     (a) “domestic purpose” means,-

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

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

(iii) cutting , removal , shifting and transportation of trees and wood for personal use; or

(iv) construction, repairing and maintenance of house including the shifting and transportation of construction materials, equipments,  machinery for personal use ; or   

(v) dismantling, demolition and shifting of old building materials or equipments other than those covered by the non-domestic purpose and including its transportation ; or

(vi) shifting and transportation of animals for personal use; or

(vii) shifting and transportation of materials including agricultural produce, raw materials, agricultural inputs and equipment or agricultural machinery relating to agricultural operations; or

                Explanation :-For the purpose of this sub-clause, “agricultural operation” does not include any activity  carried on in a plantation as  defined in clause  (f) of section 2 of the Plantations Labour Act 1951 (Central Act  69 of 1951);

             (viii) such other work or activity or process which the Government may, by notification in the official Gazette, specify to be domestic purpose;   

            (b)  “employer” means any person  who engages or employs a worker for wages or otherwise to do any loading and unloading work  connected  with or relating to or ancillary to the purposes included in this Act  and includes any other person who has ultimate control over the affairs;

(c)   “Government” means the Government of Kerala;

            (d)   “loading and unloading work” means  loading and unloading or carrying on head or person  or in a trolley any article or goods in or  from or to a vehicle or any place and includes any other work carried out for the transportation or movement  of such article or goods from one place to another;

(e)    “mischief” means “mischief” as defined in section 425 of the Indian Penal Code, 1860;

(f)     “non domestic purpose”  means,

       (i)  industrial, agricultural or commercial purpose; or other than those covered by domestic purposes;

    (ii)  construction , maintenance and dismantling of all types of buildings other than those covered by domestic purposes, dams, bridges,  tunnels, sub-ways and roads including all infrastructural projects; or

(iii) shifting and transportation of construction materials, equipments or machinery; or

(iv) cutting, removal, shifting and transportation of trees and wood for industrial and commercial purposes;  or

(v)  shifting, including the transportation of any goods or articles which are used or intended  to be used for industrial, agricultural or commercial purposes; or

(vi)  installation, erection and dismantling of any electrical, electronic, electromagnetic or other sophisticated machinery of any nature and includes the laying or removal of pipes or cables; or

(vii) installation, erection and dismantling of office equipments including the shifting and transportation of stationery and furniture items; or

(viii) shifting and transportation of any animals for industrial or commercial purposes; or

          (ix)  shifting and transportation of  any materials which are mechanically loaded or unloaded  with equipments or machinery like cranes, tippers, or earth removers; or

             (x)   such other work or activity or process which the Government may, by notification in the Official Gazette specify to be non-domestic purpose;

(g)  “ notified wages” means all remuneration payable in cash or in kind  which the Government may fix under section 8;

(h)    “prescribed” means prescribed by rules made under this Act;

(i)    “Trade Union” means the trade unions registered under the Trade Union Act, 1926 (Central Act 16 of 1926);

(j)     “unlawful practices”  means any of the practices set out in the Schedule to this Act.

(k)     “worker” means  any person either engaged directly or otherwise offering his services for the purpose of doing any loading and unloading work in connection with or relating to any of the domestic or non-domestic purposes under this Act including  a member of Trade Union, but does not include the worker or employee covered by the Factories  Act,1948 or the  Plantations Labour Act, 1951 or the Kerala Shops and Commercial Establishments Act, 1960.

3.  Application of the Act.- The provisions of this Act  shall apply to any loading and unloading work or activity or process which is connected with or related to or ancillary to,

(a)                domestic purpose, and 

(b)               non-domestic purpose, as specified in this Act.

CHAPTER II

RIGHT TO FREEDOM OF EMPLOYMENT AND

PROTECTION TO PROPERTY

4.   Right to employ workers of  one’s own  choice.- Notwithstanding any thing contained in the Kerala Head Load Workers Act, 1978 (Act 20 of 1980) an employer shall have the right to carry out loading and unloading work for domestic purposes by himself or by employing the workers of his own choice.

5.  Employment of workers for non-domestic purposes.-Notwithstanding any thing contained in the Kerala Head Load Workers Act,1978 (Act 20 of 1980) or the schemes made there under, an employer shall have the right to carry out loading and unloading work for non-domestic purposes either by himself or by employing the workers of his own choice in any industrial park, export processing zone, industrial or commercial area, tourism project area, agricultural market as the Government may, by notification in the Official Gazette, declare as such from time to time.

6. Prohibition of unlawful practices.- No worker shall individually or jointly commit any unlawful practices in connection with or relating to or ancillary to the purposes included in this Act. 

7. Prohibitions of entry  into property.- No worker shall make any unauthorised entry into the property of an employer or other person and create any obstruction or hindrance to the work or activity or process to be carried out or commit any mischief or destruction or damage to the land and property of the employer or other person whether or not such act constitutes an  offence under any other law for the time being in force.

CHAPTER III

NOTIFIED WAGES

8.   Notified Wages:- (1) The Government may regulate the wages payable to the workers under this Act in the manner prescribed by notifying it in the official gazette and the rate of wages so notified may be different for different areas:

Provided that if the notified wages in respect of any goods or  article including machinery have not been prescribed by the Government, the Government or the officers specifically authorised by the Government in that  behalf may after necessary inquiry and subject to the general guidelines as may be prescribed, fix the wages on the spot  in respect of any loading and unloading work and the wages so fixed shall be deemed to be the notified wages.

               (2) No worker employed or engaged in the loading and unloading work connected with or related to the purposes specified in this Act shall demand wages in excess of the notified wages.

                (3) No employer shall engage any worker for loading or unloading work connected with  or related to the purposes specified in this Act for the wages less than the notified wages. 

               (4)   The Government may revise the notified wages fixed under sub-section (1) at least  once in every three years. 

9.  Acknowledgement for the receipt of amount .- Every worker who had received an amount for the loading and unloading work connected with or related to the purposes of this Act shall give a signed receipt to the employer or the person who has engaged or employed him as the case may be, soon after its receipt and receipt so given shall be conclusive evidence that he has accepted the amount mentioned therein towards wages.

10.  Maintenance of  registers and records.-  The registers and records to be maintained by the Labour  Inspectors and employers, the form of receipt to be given by the workers and the particulars and form of registers   and  records to be maintained by any person who employs or engages workers for non-domestic purposes shall be in such  manner as may be prescribed by the Government.

CHAPTER IV

APPOINTMENT AND POWERS OF

LABOUR INSPECTORS AND INSPECTORS

11. Appointment and Powers of Labour Inspectors and Inspectors.-(1) The Government  may, by notification in the Official Gazette,  appoint officers in the Labour Department not below the rank of an Assistant Labour Officer  (Grade II) as Labour  Inspector for the purposes of  this Act and may define the local limits within which they shall exercise their jurisdiction.

        (2) A Labour Inspector appointed under sub-section (1) may for the purpose of ascertaining whether any of the provisions of this Act has been violated or to prevent such violations, -

(a)  either  suo moto or on a written complaint made in this behalf by an employer or any person aggrieved, enter any establishment or any premises connected therewith or any place at any reasonable time and with such assistance as he thinks necessary for the inspection, examination or enquiry with regard to such violations or apprehended violations; 

(b) require an employer or any worker or any person to furnish such information as may consider necessary;

(c) make copies  of or to take extracts  from, any book., register or other documents maintained in relation to the work carried out;

(d)  exercise such other powers as may be  prescribed .

  (3) The Government may by notification in the Official  Gazette, appoint  officers in the Police Department of and above the rank of a Sub Inspector as Inspectors for the purposes of this Act  and may define the local limits within which they shall exercise their jurisdiction.

(4) An Inspector appointed under sub section (3) may for the purpose of ascertaining whether any of the provisions of this Act has been violated or to prevent the commission  of an offence,-

(a) either suo moto or on a written complaint made in this behalf by an employer or any person aggrieved, enter any establishment or any premises connected therewith or any place at any reasonable time and with such assistance as he thinks necessary for the examination or enquiry or investigation into the alleged offence under this Act; 

(b) require an employer or any worker or any person to furnish such information as he may consider  necessary;    

                                 (c)   make copies  of or to take extracts from, any book,  register or other documents maintained in relation to the work carried out;                    

         (d)   exercise such other powers as may be prescribed.

(5)   Every Labour Inspector or Inspector appointed under sub-section (1) or sub-section (3)  as the case may be shall be deemed to be a public servant  within the meaning of Section 21 of the Indian Penal Code, 1860 (45 of 1860);

            (6)   Any person required to produce any document or  thing or to give  any information by a Labour Inspector or Inspector under this section shall be legally bound to do so within the meaning of sections 175 and 176 of the Indian Penal Code  1860 (45 of 1860).

CHAPTER V

PENALTIES AND PROCEDURE

          12. Penalty for committing unlawful practices .- Whoever  commits any unlawful practices other than items 5 and 13 of the Schedule  shall  be  punishable with imprisonment for a term which may extend to six months or with fine which shall not be less than  one thousand rupees  and which may extended to five thousand rupees or with both.

          13. Penalty for obstruction and damage.- Whoever commits any unauthorised entry into the property of an employer or any other person and creates any obstruction or hindrance to the work or activity or process to be carried out or commits any mischief or destruction or damage to the land or property of the employer or any person, shall be punishable with  imprisonment  which may extend to two years or with fine which shall not be less than one thousand rupees and which may extend to ten thousand rupees or with both .                        

            14. Penalty for obstruction of duties .-Whoever obstructs any  Labour Inspector  or Inspector or any other officer appointed under this Act in the discharge  of his duties or refuses  or wilfully  neglects to afford him reasonable facilities for making any entry, inspection, examination or enquiry authorised by or under this Act, shall be punishable with imprisonment for a term which may extend  to two years or with fine which shall not be less than one thousand  rupees and which may extend to ten thousand rupees or with both.                             

             15.  General provision for punishment of other offences.-Any person  who contravenes  any of the provisions of this Act or of any rule or order made thereunder  shall, if no other penalty is provided for such contravention by this Act,  be punishable with imprisonment  for a term which may extend to three months or with fine which may extend to two thousand rupees  or with both.

             16.   Disqualification from work.- Notwithstanding anything contained  in the Kerala Head Load Workers Act, 1978 ( Act 20  of 1980) no worker,  who has been convicted by a court  of law for an offence under this Act, shall be given registration as a head load worker under the said Act for a period of six  months  from the date of such conviction or if he is a registered head load worker under the said Act, his registration shall  be suspended  for a period of one year from the date of such conviction: 

        Provided that where the conviction is for a second or subsequent  offence under this Act the period of disqualification shall be for two years.

                17.  Compounding of offences.- (1)  The Government may, by notification in the Official Gazette,  appoint officers of the Labour  Department  of and above the rank of District Labour Officer  as appropriate authority for compounding the offences committed under this Act, before their cognizance by the Court, on payment of a sum which may not be less than the minimum of the  fine stipulated for such offence but may extend to the maximum of the fine stipulated for such offence and may also include the cost of damage suffered by the complainant, by way of composition of the offence for which such person is suspected  to have committed:

                     Provided that no such compounding shall be permitted in case of second  and subsequent offences.                                      

                            (2)   On  payment of such sum to the appropriate  authority under sub-section (1),  the offender, if in custody shall be released and no further proceedings shall be taken against such offence.

                18.   Certain offences to be cognizable.-(1) Notwithstanding anything contained in the Code of  Criminal Procedure, 1973 the offences punishable under sections 12, 13, and 14 of this Act shall be deemed to be a cognizable offence within the meaning of that Code.

                           (2)   No Court shall take  cognizance of the offences referred to in sub-section (1) except upon a Police Report as provided in the Code of Criminal Procedure, 1973.

CHAPTER VI

MISCELLANEOUS

              19.  Violation of the provisions of this Act not to attract other enactments.- Notwithstanding anything contained in any other law for the time being in force, the violation of any of the provisions of this Act shall not constitute  a dispute as defined in any other law and any such violation shall be dealt with in accordance with the provisions of this Act and the rules made thereunder .

              20.   Bar of Jurisdiction of Civil Court .-No Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of anything done, any action taken or  order or direction issued by the Government or any other authority or officer in pursuance  of any power conferred by or in relation to its or his functions under this Act. 

              21.   Delegation of power .- The Government may, by notification in the Official Gazette , direct that any power exercisable by them under this Act,  or the rules made thereunder  (other than the powers conferred by this section, section 22,23 and 25) shall in relation to such matters and subject to  such conditions, if any, as may be specified in the notification, shall be exercised also by such officer or Authority  subordinate to the Government, as may be specified in the notification. 

               22.   Power to amend Schedule.-  (1) The Government may, if it is of opinion that it is expedient or necessary in the public  interest so to do, by notification in the Official Gazette, add to or alter  or amend the Schedule and on any such notification being issued, the Schedule shall be deemed to have been amended accordingly.

                (2)     Every such  notification, shall, as soon as may  be after it is issued,  be laid  before the Legislative Assembly. 

               23.   Power to remove difficulties .- (1) If any  difficulty arises in giving effect to the provisions of this Act, or the rules made there under,  the Government may, by order, do anything, not inconsistent  with the provisions of this Act which appears to them to be necessary or expedient for the purpose of removing the difficulty:

             Provided that no such order shall be passed after two years from the date of commencement of this Act. 

                   (2)       Every order made under this section, shall, as soon as may be after it is made, be laid before the Legislative Assembly. 

                 24.   Protection of action taken in good faith.-  No suit, prosecution  or other legal proceeding shall lie against the Government or any authority or officer in respect of anything which is done or intended to be done in good faith in pursuance of this Act or any rule or order made under this Act.

           25.    Power to  make rules.- (1)  The Government may, by notification in the Gazette, make rules for the purpose of carrying into effect the provisions of this Act. 

(2)   Without prejudice to the generality of the  foregoing  power, such rules may, -      

(a)  prescribe the obligations of  employers and  workers;

 (b)  regulate the employment of workers and the terms and conditions of such employment which are not specifically prescribed in this Act;

 (c) prescribe the method of summoning witnesses, production of  documents relevant to the subject matter of the investigation or enquiry before the Inspector or Labour Inspector or any other officer authorised by the Government.

 (d)   prescribe the powers of Labour Inspector or Inspectors and other officers appointed for the purpose of this Act;

       (e)   prescribe the  modalities for preferring complaint and   matters  consequential thereto; 
                                        (f)   prescribe general guidelines for fixing notified wages;

                                        (g)  prescribe the procedure connected with compounding of offences;

 
                                        (h)  provides for any other matter which is to be or may be prescribed for the effective implementation of the provisions of this Act.

                     (3)      Every rule made under this Act shall be laid, as soon as may be after it is made, before the Legislative Assembly,  while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions and if, before the expiry of the session  in which it is so laid or the session immediately following, the Legislative Assembly makes  any modification in the rule or decides that the rule should not be made, the rule shall, thereafter, have effect only in such modified form or be of no effect, as the case may be, so however,that any such modification or annulment  shall be without prejudice to the validity of any thing previously done under that rule.

1.     Intentionally putting an employer in fear of any injury to, him or any other person or damage to his goods or property  for getting any work done  or  demanding amounts  in excess of  the notified wages for the loading and unloading work connected with or ancillary to the purposes specified in this Act.

2.     Intimidating an employer by threat or violence to compel him to engage any person or group  of persons for loading and unloading work or for paying amounts in excess of the notified wages prescribed for the work performed.

3.     Demanding the right to undertake the loading and unloading work connected with or related to         domestic purposes after the employer has refused to engage any worker or  group of workers.

4.     Demanding, claiming or receiving any amount without executing any work or for the work done by others.

5.      Individually  or jointly making any obstruction or hindrance to the loading or unloading work and the transportation of goods and articles to be carried out in connection with or relating to or ancillary to the purposes specified in this Act,

6.      Obstructing the movement of   vehicles or persons carrying goods or articles  and delaying of the work connected  with or related to the purposes specified in this Act.

7.      Initially causing damage to the articles or vehicles or machinery or goods while carrying out the loading and unloading work.

8.      Indulging in acts  of threat, violence, force, using  abusive languages and the like in connection with the work  related to the purposes specified in this Act.

9.       Indulging in work under the influence of alcohol or other intoxicants.

10      Receiving amounts in excess of the notified wages prescribed for the work or receiving any amount  in any other form or manner.

11.     Receiving any amount without issuing proper receipt on  demand.

12.     Demanding or claiming any loading and unloading work in an area where the worker has no preference to do the work.

13.     Unauthorised entry into the property of an employer or any person or premises of an establishment for demanding or claiming  the loading and unloading work connected wtth or related to the purpose specified in this Act.