Kerala High Court
K.R.Bijimon vs The Commissioner Of Police on 9 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942
WP(C).No.33916 OF 2019(L)
PETITIONER:
K.R.BIJIMON,
CHIEF GENERAL MANAGER, MUTHOOT FINANCE LTD,
MUTHOOT CHAMBERS, OPP SARITHA THEATRE COMPLEX,
BANERJI ROAD, ERNAKULAM - 682 018.
BY ADVS.
SRI.GEORGE POONTHOTTAM (SR.)
SMT.NISHA GEORGE
RESPONDENTS:
1 THE COMMISSIONER OF POLICE,
OFFICE OF THE COMMISSIONER OF POLICE,
ABDUL KALAM MARG, MARINE DRIVE,
ERNAKULAM - 682 031.
2 THE ASSISTANT COMMISSIONER OF POLICE,
OFFICE OF THE COMMISSIONER OF POLICE,
ABDUL KALAM MARG, MARINE DRIVE,
ERNAKULAM - 682 031.
3 THE STATION HOUSE OFFICER,
CENTRAL POLICE STATION,
ERNAKULAM - 682 018.
4 NON BANKING AND PRIVATE FINANCE EMPLOYEES
ASSOCIATION (CITU),
EMS SMARAKA MANDIRAM, KALABHAVAN ROAD,
ERNAKULAM NORTH - 682 018,
REPRESENTED BY ITS GENERAL SECRETARY.
5 ADDL.R5.
THE CHIEF SECRETARY
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
6 ADDL.R6.
THE HOME SECRETARY
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
WP(C).Nos.33916 of 2019 &
602 of 2020 2
7 ADDL.R7.
THE DIRECTOR GENERAL OF POLICE
KERALA STATE POLICE HEADQUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM - 695010.
ADDL.R5 TO R7 ARE IMPLEADED AS PER ORDER DATED
06/01/2020 IN I.A.NO.1/2020.
R1-R3, R5-7 BY SRI.P.P.THAJUDEEN,GOVERNMENT PLEADER
R4 BY ADV. SRI.T.A.SHAJI (SR.)
R4 BY ADV. SRI.S.KRISHNA MOORTHY(ERNAKULAM)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.02.2021, ALONG WITH WP(C).602/2020(A), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).Nos.33916 of 2019 &
602 of 2020 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942
WP(C).No.602 OF 2020(A)
PETITIONER:
MUTHOOT FINANCE LTD.,
MUTHOOT CHAMBERS, OPPOSITE SARITHA THEATRE COMPLEX,
BANERJI ROAD, ERNAKULAM-682 018
BY ADVS.
SRI.GEORGE POONTHOTTAM (SR.)
SRI.ARUN CHANDRAN
SMT.NISHA GEORGE
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE HOME SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001
2 THE DIRECTOR GENERAL OF POLICE,
KERALA STATE POLICE HEADQUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM-695 010
3 INSPECTOR GENERAL OF POLICE
SOUTH ZONE, NANDAVANAM, THIRUVANANTHAPURAM-695 033
4 INSPECTOR GENERAL OF POLICE,
CENTRAL ZONE, NADAKKAVU , NADAKKAVU, CALICUT-673
011
5 NON-BAKING AND PRIVATE FINANCE EMPLOYEES
ASSOCIATION(CITU)
EMS SMARAKA MANDIRAM, KALABHAVAN ROAD, ERNAKULAM
NORTH-6982 018, REPRESENTED BY IS GENERAL SECRETARY
6 CENTRE OF INDIAN TRADE UNION (CITU)
KERALA, REPRESENTED BY THE SECRETARY,
E.BALANANDAN MEMORIAL BUILDING, THAMPANOOR,
WP(C).Nos.33916 of 2019 &
602 of 2020 4
THIRUVANANTHAPURAM.P.O.,
THIRUVANANTHAPURAM-695 001
7 ADDL.R7
SHINU CHACKO
AGED 46 YEARS, S/O CHACKO, KARIMATRA,
AYUR P.O, KOLLAM DISTRICT.
8 ADDL.R8
VINAYAKUMAR S.,
V.V.COTTAGE, CHERUVAKKAL P.O,
AYUR, KOLLAM DISTRICT
9 ADDL.R9
GEORGEKUTTY,
KADAYIL PUTHUVEEDU, MAVADI P.O,
PUVATHOOR, PUTHOOR, KOLLAM DISTRICT.
10 ADDL.R10
MANUKUMAR,
MAYA BHAVAN, MANAKKARA.P.O,
SAASTHAMCOTTA, KOLLAM DISTRICT
11 ADDL.R11
SUSHA M.S,
SINDHU BHAVAN, PULAMAN,
KOTTARAKKARA, KOLLAM DISTRICT
ADDL R7 TO R11 IMPLEADED AS PER ORDER IN I.A.NO.1
OF 2020 DATED 09.02.2021
R1-4 BY SRI.P.P.THAJUDEEN GOVERNMENT PLEADER
R5 BY ADV. SRI.S.KRISHNA MOORTHY(ERNAKULAM)
R5 BY ADV. SRI.T.A.SHAJI (SR.)
R7 BY ADV. K.T.THOMAS
R7 BY ADV. SRI.MATHEW B. KURIAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.02.2021, ALONG WITH WP(C).33916/2019(L), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C).Nos.33916 of 2019 &
602 of 2020 5
JUDGMENT
Muthoot Finance Ltd., the petitioner in W.P.(C).No.602 of 2020 is a
non-banking company with more than 3000 branches all over the country.
In the State of Kerala, they are stated to have more than 800 branches.
2. The petitioners contend that they faced a downturn in market
conditions and in order to stay afloat, they decided to close 44 branches
after informing the statutory authorities and in compliance with law. When
their decision was published in the newspapers, the employees were not
pleased and they decided to go on strike. The strike was vicious and the
petitioner had to close down almost all branches for about 52 days. When
physical harm was caused to the willing employees, the petitioner
approached this Court and filed W.P.(C).No.22610 of 2019. This Court
ordered the parties to submit themselves to conciliation proceedings and
the Additional Labour Commissioners were ordered to intervene. Sri.Liji J.
Vadakkedom, an experienced and able advocate practicing before this Court
was appointed as the observer to guide the parties to come to a settlement.
By the combined efforts of all concerned, the conciliation was successful
and a settlement was arrived at. This Court closed the writ petition
WP(C).Nos.33916 of 2019 &
recording the tripartite settlement holding that it shall have the sanctity of
one entered into under the Industrial Disputes Act, 1947, however with
further observations. It was ordered that if there are any further issues
between the management and the workers, they shall seek assistance from
the Labour Department of the State rather than seeking help from agencies
and outfits, which are extraneous to the real concerns.
3. However, the settlement arrived did not last for long.
4. On 10.12.2019, a group of employees staged a dharna in front
of the head office and the management as well as the willing employees
were threatened. Contending that certain leaders who spoke during the
meeting raised open threats of physical harm, the management lodged a
complaint before the police. Complaining of inaction by the police, W.P.
(C).No.33916 of 2019 was filed seeking the following reliefs:
i) to direct the official respondents to provide sufficient police protection
to the employees working at the head office and thereafter, so long as
the agitation continues, directing the 4th respondent Union to keep a
distance of 50 metres from the entry to the office of the head office
without obstructing or preventing the free movement of the office staff
and others who are coming to the office in connection with the business
transaction, without blocking the entry to the office for the employees
and customers or obstructing them in any manner as well as for the
property of the head office, pending disposal of the writ petition.
ii) direct the police to take appropriate action in accordance with the
WP(C).Nos.33916 of 2019 &
provisions of Kerala Prevention of Damage to Private Property and
Payment of Compensation ordinance/Act, 2019 as against all those who
are involved in causing damages to the property, pending disposal of the
writ petition.
5. This Court by an interim order dated 11.12.2019 directed the
2nd respondent to remove the members and associates of the 4th
respondent trade union from the premises of the head office of M/s.
Muthoot Finance Ltd. located at Banerji Road to a distance of at least 15
metres away from the premises so as to ensure the smooth functioning of
the office. It was further ordered that the 2nd respondent shall ensure that
the removal of the members and associates of the 4th respondent shall not
affect the activities or cause hindrance to the ingress and egress of others.
6. During the pendency of the writ petition, it was reported before
this Court that while the Managing Director of the company was travelling in
a car, he was attacked and some injuries were inflicted. This Court by order
dated 07.01.2020 took note of the fact situation and directed the police to
ensure the safety of the employees.
7. Immediately thereafter, W.P.(C).No.602 of 2020 was filed by
Muthoot Finance seeking the following reliefs:
i) issue a writ in the nature of mandamus directing respondents 1 to
4 to provide protection for the employees in the 568 branches so also
WP(C).Nos.33916 of 2019 &
the regional office covered in Ext.P14 list by enabling them to
perform their duty without being obstructed or prevented in any
manner at the instance of respondents 5 and 6 and their henchmen.
ii) issue a writ declaring that the employees of the petitioner
company numbering 2500 working at the regional offices and
branches covered through Ext.P14 are entitled to get protection for
their life, property and peaceful living without being violated at the
instance of any one especially respondents 5 and 6 and their
henchmen.
8. On 10.01.2020, when the matter had come up, after
considering the submissions and noting the facts, this Court issued an
interim order ordering protection to the employees working under various
branches as referred in Ext.P14. The petitioner was directed to approach
the jurisdictional police if any untoward event occurs. This Court taking note
of the earlier conciliation proceedings directed the parties to appear before
the Labour Commissioner. Sri.Liji J. Vadakkedom, the learned counsel who
was appointed as the Advocate observer in previous proceedings, was
requested to intervene and hold conciliation meetings at Ernakulam. In
terms of the directions issued by this Court, valiant efforts were taken by all
concerned to bring about a peaceful settlement. The observer has filed
separate and detailed reports on 17.01.2020, 23.01.2020 and on
08.12.2020. It is stated that 17 meetings were convened by the Labour
Commissioner/Additional Labour Commissioner and the Observer had
WP(C).Nos.33916 of 2019 &
attended all the meetings. However, the efforts made by the Labour
Commissioner as well as the observer to bring about a settlement have
ended in failure.
9. According to the petitioner, the striking employees have no
manner of right to raise threats or inflict harm to the willing employees or to
the Management. They would contend that more than 30 crimes have been
registered till date by the police, which fact itself would reveal the
seriousness of the situation. Instead of settling the grievances, if any, by
exhausting the provisions of the Labour laws, intimidatory tactics are
adopted by the striking employees to force the management to concede to
their illegal demands. It is contended that now that the conciliation
proceedings have failed, the failure report will have to be placed before the
appropriate Government under Section 10 of the Industrial Disputes Act,
1947 for reference to the jurisdictional forum. Until then, the police be
directed to maintain vigil and safeguard the life and property of the
petitioner, the employees and their customers and necessary steps be taken
to ensure that no obstruction is caused to the running of the business.
10. The party respondents have filed a counter affidavit, wherein it
is asserted that the employees are merely engaging in peaceful Dharna to
enforce their rights. According to them, the petitioner has managed to
WP(C).Nos.33916 of 2019 &
influence the police and register false crimes against the employees. It is
further contended that the employees resorted to peaceful agitation only
when the management violated the directions issued by this Court in the
earlier writ petition and unilaterally declared closure of 43 branches and
terminated about 166 employees. It is further stated that it is due to the
callous attitude of the management that the settlement had ended in
failure.
11. The Additional Director General of Police has filed a statement
as directed by this Court. It is stated that in the Districts coming under the
jurisdiction of I.G. of Police, South Zone, 732 police personnel have been
deployed till date for the protection and security of the employees and
branches of Muthoot Finance Ltd. Similar numbers of police personnel have
been deployed in other places as well. It is further stated that a total
number of 30 cases have been registered in various police stations within
the jurisdiction of I.G. of Police, South Zone, 13 crimes have been registered
in Kottayam District and 13 crimes have been registered in Idukki District.
In some of the cases, final reports have been filed. It is further stated that
police are following a policy of posting pickets in front of different branches
of the bank and have also been patrolling the routes of employees. It is
further stated that no crimes have been registered under the Kerala
WP(C).Nos.33916 of 2019 &
Prevention of Damage to Private Property Ordinance, 2019 as those
provisions are not attracted. It is further stated that the police are alert and
have been maintaining constant vigil to avert any untoward situation. It is
also stated that protection is being given to the employees to ensure that
no harm is caused to them.
12. I have heard Sri.George Poonthottam, the learned senior
counsel appearing for the petitioners in these writ petitions as instructed by
Sri.Arun Chandran, the learned counsel, Sri.T.A.Shaji, the learned senior
counsel appearing for the party respondents as instructed by
Sri.S.Krishnamoorthy, the learned counsel and Sri.P.P.Thajudeen, the
learned Government Pleader.
13. I have considered the submissions advanced.
14. These writ petitions have been pending before this Court for
quite some time. In both these writ petitions interim orders have been
passed by this Court. From the statement filed by the official respondents,
it is borne out that the police are keeping constant vigil. The records would
reveal that more than 40 crimes have been registered based on information
furnished by the petitioner or their employees complaining of commission of
offences.
15. In the course of hearing the learned senior counsel appearing
WP(C).Nos.33916 of 2019 &
for both sides as well as the observer appointed by this Court has submitted
that the conciliation has failed for one reason or the other. Both sides
concede that it would be futile to keep these writ petitions pending as both
sides refuse to relent to the conditions imposed by the other side to settle
the dispute once and for all. The learned senior counsel appearing for both
sides suggest that the only alternative is to direct the labour authorities to
report the failure to the appropriate Government so that the appropriate
Government can refer the dispute to the forum having jurisdiction to resolve
the issues. I have also gone through the report submitted by the observer
appointed by this Court on 8.12.2020. The entire sequence of events have
been detailed in the said report and it has been stated that since there are
no other alternatives, it has been decided in the conciliation meeting held by
the Labour Commissioner/Additional Labour Commissioner to report failure
of the conciliation proceedings before this Court. In that view of the matter,
the report is accepted.
16. It was by order dated 10.1.2020 that this Court had directed
the Labour Commissioner to initiate conciliation proceedings and Sri. Liji J
Vadakkedom was appointed as observer. Now that the resolution has failed,
it is for the Additional Labour Commissioner (Industrial Relations), who had
attended the conciliation meetings to submit a full report under Section
WP(C).Nos.33916 of 2019 &
12(4) of the Act stating the reasons on account of which a settlement could
not be arrived at. This shall be done within a period of three weeks from the
date of receipt of a copy of this judgment. The appropriate Government
shall consider the report and take a decision in terms of Section 12(5) of the
I.D.Act within a further period of three weeks.
17. Until the dispute is adjudicated by the forum having jurisdiction,
the parties will have to maintain law and order. The statement filed by the
Additional Director General of Police details the steps taken by the police
pursuant to orders issued by this Court to ensure that breach of peace is
averted. From the statement it is apparent that more than 40 crimes have
been registered till date. The workers have the right to resort to strike or
dharna to effectively bargain with the management and to ensure that
unfair labour practices are avoided. As held by this court in Balakrishna
Transport v. Superintendent of Police [1990 (1) KLT 435], strike is only
a form of demonstration and the right to strike as well as the right to
demonstrate are important weapons in the armoury of workers. However,
in the guise of a strike, the union leaders as well as the striking workers
cannot resort to strong arm tactics and violence to intimidate and force the
management to succumb to their demands. Even if the demand is
legitimate, if the management for one reason or the other do not accede to
WP(C).Nos.33916 of 2019 &
their demand, the only option is to resolve the dispute in a manner known
to law, steps for which directions have already been issued. In the case on
hand, the sequence of events would show that there has been violence.
Though the learned senior counsel appearing for the party respondents
submitted that the Union leaders or the striking employees cannot be held
responsible for stray incidents caused by anti-social elements, the fact
remains that the petitioner company will not be able to stand its own
against an organizational move by the Union. The records reveal that
employees, both men and women, have been assaulted and the functioning
of the banks have been obstructed. Some of the allegations are abhorrent
in nature. Under no circumstances can the respondents resort to violence to
further their cause. That would infringe the rights of the petitioner to carry
on their business.
18. In that view of the matter, the interim order passed by this
Court on 10.1.2020 in W.P.(C) No.602 of 2020 as modified by order dated
13.2.2020 is made absolute. If any specific complaint is lodged by the
petitioners, the police shall render effective protection and they shall also
ensure that no harm is caused to the workers, management or staff and
that the business being run by the petitioner is not obstructed. If any
Dharna or strike is being carried out by the striking employees, it shall be
WP(C).Nos.33916 of 2019 &
outside the premises of the establishment and shall be without obstructing
the ingress and egress into the establishment. As undertaken by the
Additional Director General of Prosecution in the statement dated 22.2.2020
in W.P.(C) No.602 of 2020, the police shall maintain constant vigil.
For the arduous efforts put in by the observer appointed by this Court
and taking note of the fact that he had attended 17 conciliation meetings to
bring about a settlement, I direct the petitioners to pay a sum of Rs.2 lakhs
to Sri. Liji J Vadakkedom as remuneration, which shall be paid within three
weeks.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
ps
WP(C).Nos.33916 of 2019 &
APPENDIX OF WP(C) 33916/2019
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WPC NO.
22610/2019 DATED 14-10-2019 PASSED BY
THIS HON'BLE COURT.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WPC NO.
24459/2019 DATED 16-10-2019 PASSED BY
THIS HON'BLE COURT.
EXHIBIT P3 TRUE COPY OF THE COMPLAINT SIGNED BY THE
174 EMPLOYEES OF THE HEAD OFFICE
SUBMITTED BEFORE THE 3RD RESPONDENT
DATED 10-12-2019.
EXHIBIT P4 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT
ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE REQUEST DATED
10-12-2019 SUBMITTED BEFORE THE POLICE.
EXHIBIT P6 TRUE COPY OF THE DOWNLOADED VERSION OF
THE WHATSAPP MESSAGE.
EXHIBIT P6A TRUE COPY OF THE FIR IN CRIME NO.09/2020
REGISTERED BY ERNAKULAM CENTRAL POLICE
DATED 02.01.2020.
EXHIBIT P7 TRUE COPY OF THE FIR IN CRIME NO.11/2020
REGISTERED BY ERNAKULAM CENTRAL POLICE
DATED 03.01.2020.
RESPONDENTS' EXHIBITS:
EXHIBIT R4A A TRUE COPY OF THE TRIPARTITE SETTELMENT
ARRIVED AT ON 10TH OCTOBER 2019
EXHIBIT R4 B A TRUE COPY OF THIS LETTER DATED
26.10.2019 ADDRESSED TO THE LABOUR
COMMISSIONER
EXHIBIT R4 C TRUE COPY OF THE NOTICE OF THE LABOUR
COMMISSIONER DATED 26.11.2019
EXHIBIT R4 D TRUE COPY OF THE NOTICE OF THE LABOUR
WP(C).Nos.33916 of 2019 &
COMMISSIONER DATED 11.12.2019
EXHIBIT R4 E A TRUE COPY OF THE JUDGMENT BY THE
DIVISION BENCH OF THIS HONOURABLE COURT
IN WPC 21823/2013
EXHIBIT R4 F TRUE COPIES OF THE PHOTOGRAPHS SHOWING
NEW BRANCH OF MUTHOOT FINANCE OPENED IN
RAJAKKAD IN IDUKKI
EXHIBIT R4 G TRUE COPY OF THE NEWS REPORT PUBLISHED
IN BUSINESS JOURNAL DATED 14.10.2020
EXHIBIT R4 H TRUE COPY OF THE NEWS REPORT PUBLISHED
IN NEW INDIAN EXPRESS DATED 15.10.2020
WP(C).Nos.33916 of 2019 &
APPENDIX OF WP(C) 602/2020
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN W.P(C)
22610/2019 DATED 14.10.2019 PASSED BY THIS
HON'BLE COURT
EXHIBIT P2 TRUE COPY OF THE ORDER IN W.P(C) 33916/2019
DATED 11.12.2019 PASSED BY THIS HON'BLE
COURT
EXHIBIT P3 TRUE COPY OF THE ORDER IN W.P(C) 33916/2019
DATED 06.01.2020 PASSED BY THIS HON'BLE
COURT
EXHIBIT P4 TRUE COPY OF THE COMPLAINT SIGNED BY THE
EMPLOYEES OF THE HEAD OFFICE SUBMITTED
BEFORE THE HON'BLE CHIEF MINISTER OF
KERALA, DATED 06.1.2020
EXHIBIT P5 TRUE COPY OF THE REQUEST GIVEN BY SOME OF
THE REGIONAL MANAGERS AND THE BRANCH
MANAGERS OF THE PETITIONER COMPANY
EXHIBIT P6 TRUE COPY OF THE STRIKE NOTICE GIVEN BY THE
GENERAL SECRETARY OF THE 5TH RESPONDENT
UNION THROUGH E-MAIL
EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS RECORDING THE
FAILURE OF THE ATTEMPT AT THE LABOUR
COMMISSIONER'S LEVEL ALONG WITH NOITCE
EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 26.12.2019
ISSUED BY THE LABOUR COMMISSIONER
EXHIBIT P9 TRUE COPY OF THE SETTLEMENT DATED
10.10.2019
EXHIBIT P10 TRUE COPY OF THE PROPOSAL PUBLISHED ON
MALAYALA MANORAMA DAILY DATED 06.09.2019
EXHIBIT P11 TRUE COPY OF THE PROPOSAL PUBLISHED ON
KERALA KAUMUDI DAILY DATED 05.09.2019
EXHIBIT P12 TRUE COPY OF THE NEWSPAPER PUBLICATION
PUBLISHED ON NEW INDIAN EXPRESS DAILY DATED
WP(C).Nos.33916 of 2019 &
06.09.2019
EXHIBIT P13 TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE
THE POLICE BY THE WOMEN EMPLOYEES OF THE
PETITIONER COMPANY
EXHIBIT P14 TRUE COPY OF THE LIST OF BRANCHES OF THE
PETITIONER COMPANY, TO WHICH PROTECTION IS
REQUIRED
RESPONDENTS' EXHIBITS:
EXHIBIT R7(A) TRUE COPY OF THE NOTICE DATED 23.05.2020
ISSUED BY 1ST RESPONDENT TO 1ST PETITIONER.
