Kerala High Court
Hakkim.A vs State Of Kerala on 16 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942
WP(C).No.2347 OF 2021(P)
PETITIONER:
HAKKIM.A.,
AGED 53 YEARS
S/O. ABDUL SAMAD, PROPRIETOR,
TAJMAHAL TILES AND GRANITES,
RESIDING AT MUPPARAYIL VEETTIL,
CHETTACHAL P.O, VITHURA,
THIRUVANANTHAPURAM-695 551
BY ADV. SMT.N.P.ASHA
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001
2 THE STATE POLICE CHIEF,
KERALA STATE POLICE HEAD QUARTERS,
VAZHUTHACAUD, THIRUVANANTHAPURAM-695 010
3 THE CIRCLE INSPECTOR OF POLICE,
PALODE POLICE STATION,
THIRUVANANTHAPURAM-695 562
4 THE STATION HOUSE OFFICER,
PALODE POLICE STATION,
THIRUVANANTHAPURAM-695 562.
5 KERALA HEADLOAD WORKERS WELFARE BOARD,
THIRUVANANTHAPURAM DISTRICT COMMITTEE OFFICE,
KAUSTHUBHAM COMPLEX, CHENTHITTA,
THIRUVANANTHAPURAM-695 036.
WP(C).No.2347 OF 2021(P) 2
6 SAHADEVAN,
AGED 64 YEARS, CONVENOR,
CENTER OF INDIAN TRADE UNIONS (CITU),
UNION OFFICE, PLAVARA,
PACHA P.O, PALODE,
THIRUVANANTHAPURAM-695 562
7 BAIJU,
AGED 45 YEARS
S/O. SADANANDAN, CONVENOR,
INDIAN NATIONAL TRADE UNION CONGRESS (INTUC),
UNION OFFICE, PLAVARA, PACHA P.O,
PALODE, THIRUVANANTHAPURAM-695 542
R1-4 BY SRI.SUNIL NATH N.B - GOVERNMENT PLEADER
R5 BY ADV. SHRI.THOMAS ABRAHAM
R6-7 BY ADV. SRI.LATHEESH SEBASTIAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.2347 OF 2021(P) 3
JUDGMENT
The petitioner, who is the proprietor of Tajmahal Tiles and
Granites, Nanniyodu has filed this writ petition under Article
226 of the Constitution of India seeking a writ of mandamus
commanding the 4th respondent Station House Officer of Palode
Police Station to provide adequate and effective police
protection to the petitioner to run his establishment 'Tajmahal
Tiles and Granites' by employing his own employees and to
prevent obstruction being caused by respondents 6 and 7 and
the headload workers, who are the members of their Unions.
The petitioner has also sought for a direction commanding and
compelling the 4th respondent to restrain respondents 6 and 7
and their members from entering into the petitioner's business
place and to provide adequate police protection to the life and
property of the petitioner and his workers.
2. On 29.1.2021 when this writ petition came up for
admission, the learned Government Pleader took notice on
admission for respondents 1 to 4. The learned Standing
Counsel took notice on admission for the 5 th respondent.
Urgent notice on admission by special messenger was ordered
to respondents 6 and 7, returnable by 5.2.2021.
3. On 5.2.2021 when this writ petition came up for
consideration, the learned Standing Counsel for the 5 th
respondent submitted that the area in question is not a
scheme covered area. The learned counsel for respondents 6
and 7 sought time to file counter affidavit. Having
considered the averments in the writ petition and also the
submissions made by the learned counsel on both sides, and
taking note of the fact that the area in question is not a
scheme covered area, this Court granted an interim order on
5.2.2021, which reads thus:
"Having considered the averments in the writ
petition and also the submissions made by the
learned counsel on both sides and taking note of
the fact that the area in question is not a scheme
covered area, there will be an interim order
directing the 4th respondent to ensure that there is
no obstruction whatsoever to the loading and
unloading activities undertaken in the petitioner's
establishment, at the instance of respondents 6
and 7 or their supporters, for a period of one
month."
4. Respondents 6 and 7 have filed their counter
affidavit opposing the reliefs sought for in the writ petition.
5. Along with a memo filed by the learned
Government Pleader, the report of the 4 th respondent Station
House Officer is placed on record.
6. Heard the learned counsel for the petitioner, the
learned Government Pleader appearing for respondents 1 to
4, the learned standing counsel for the 5 th respondent and
also the learned counsel for respondents 6 and 7.
7. The Kerala Police Act, 2011 is enacted to
consolidate and amend the law relating to the establishment,
regulation, powers and duties of the Police Force in the State
of Kerala and for matters connected therewith and incidental
thereto. Chapter II of the Act deals with duties and functions
of Police. Section 3 of the Act deals with general duties of
Police. As per Section 3, the Police, as a service functioning
category among the people as part of the administrative
system shall, subject to the Constitution of India and the
laws enacted thereunder, strive in accordance with the law,
to ensure that all persons enjoy the freedoms and rights
available under the law by ensuring peace and order,
integrity of the nation, security of the State and protection of
human rights. Section 4 of the Act deals with functions of
Police. As per Section 4, the Police Officers shall, subject to
the provisions of the Act, perform the functions enumerated
in clauses (a) to (s) of Section 4. As per clause (a), the Police
Officers shall enforce the law impartially; and as per clause
(b), the Police Officers shall protect the life, liberty, property,
human rights and dignity of all persons in accordance with
the law.
8. Lord Denning in 'The Due Process of law' [First
Indian Reprint 1993, Page 102] has described the role of the
Police thus;
"In safeguarding our freedoms, the police play vital
role. Society for its defence needs a well-led, well-
trained and well-disciplined force or police whom it
can trust, and enough of them to be able to prevent
crime before it happens, or if it does happen, to
detect it and bring the accused to justice.
The police, of course, must act properly. They must
obey the rules of right conduct. They must not extort
confessions by threats or promises. They must not
search a man's house without authority. They must
not use more force than the occasion warrants."
9. In Manohar Lal Sharma v. Principal Secretary
[(2014) 2 SCC 532] the Apex Court held that, one of the
responsibilities of the police is protection of life, liberty and
property of citizens. The investigation of offences is one of
the important duties the police has to perform. The aim of
investigation is ultimately to search for truth and bring the
offender to the book. The Apex Court reiterated the said
principle in Ankush Maruti Shinde v. State of
Maharashtra [(2019) 15 SCC 470].
10. In Gujarat Steel Tubes Ltd. Vs. Gujarat Steel
Tubes Mazdoor Sabha [(1980) 2 SCC 593] the Apex
Court held that, the right to unionise, the right to strike as
part of collective bargaining and subject to the legality and
humanity of the situation, the right of the weaker group viz.
labour, to pressure the stronger party viz. capital, to
negotiate and render justice, are processes recognised by
industrial jurisprudence and supported by Social Justice.
While society itself, in its basic needs of existence, may not
be held to ransom in the name of the right to bargain and
strikers must obey civilised norms in the battle and not be
vulgar or violent hoodlums industry, represented by
intransigent Managements, may well be made to reel into
reason by the strike weapon and cannot then sequeal or wail
and complain of loss of profits or other ill-effects but must
negotiate or get a reference made. The broad basis is that
workers are weaker although they are the producers and
their struggle to better their lot has the sanction of the rule
of law. Unions and strikers are no more conspiracies than
professions and political parties, are, and being far weaker,
need succour. Part IV of the Constitution, read with Article
19, sows the seed of this burgeoning jurisprudence. The
Gandhian quote at the beginning of the judgment [Para.5 @
Page 603 SCC] sets the tone of economic equity in industry.
Of course, adventurist, extremist, extraneously inspired and
puerile strike, absurdly insane persistence and violent or
scorched earth policies boomerang and are anathema for the
law. Within these parameters the right to strike is integral to
collective bargaining.
11. In Raghavan v. Superintendent of Police
[1998 (2) KLT 732], in the context of the Section 21 of of
the Kerala Headload Workers Act, 1978 and Rule 15 of the
Kerala Headload Workers Rules, 1981, which deals with
settlement of disputes, a Full Bench of this Court held that,
the Act and the Rules provide for a machinery for settlement
of disputes between the employer and the worker. In the
normal course, the dispute between the employer and the
headload workers employed by him are to be settled in
accordance with the machinery thus provided under the
Statute, just like in the case of any other labour dispute
being settled in accordance with the provisions contained
under the relevant Statutes. But the fact that there is a
machinery provided under the Act to settle the disputes
between the parties cannot stand in the way of the employer
seeking police protection when there is a law and order
problem. When such an employer approaches this Court
under Article 226 of the Constitution of India seeking
protection of person and property of the employer as well as
willing workers, this Court will be justified in granting
direction to the police to give protection, if circumstances so
warrant. One such consideration can be irreparable injury
that would be suffered by the employer and/or the willing
workers. There may be other circumstances also which would
justify grant of such direction in the facts of a particular case.
12. The petitioner's establishment, 'Tajmahal Tiles and
Granites' at Nanniyodu is admittedly situated in an area,
which is not covered by the scheme formulated under the
Kerala Headload Workers (Regulation of Employment and
Welfare) Scheme, 1983. The said fact is not in dispute. If
that be so, the petitioner can engage his own employees for
doing loading and unloading work in his establishment
'Tajmahal Tiles and Granites'. The respondents 6 and 7 or
the headload workers under them cannot raise any objection
or cause any obstructions to the loading and unloading work
in the petitioner's establishment, by engaging his own
workers.
In such circumstances, this writ petition is disposed of
with the following directions:
i) The 4th respondent shall take necessary steps
to ensure that there is no threat to law and order at
the locality, at the instance of respondents 6 and 7
or the headload workers under them, in connection
with loading and unloading activities undertaken in
the petitioner's establishment by employing his own
workers.
ii) In case there is any obstruction whatsoever to
the loading and unloading activities undertaken in
the petitioner's establishment by engaging his own
workers, from the side of respondents 6 and 7 or
the members of their union, the petitioner shall
approach the 4th respondent Station House Officer
with a proper request for police protection.
iii) In case any such request is received from the
petitioner seeking police protection, the 4 th
respondent shall consider the same and take
appropriate action, without any delay, taking note of
the statutory provisions referred to hereinbefore and
also the law laid down in the decisions referred to
supra.
No order as to costs.
Sd/-
ANIL K. NARENDRAN
ab JUDGE
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE GST REGISTRATION
CERTIFICATE ISSUED BY THE GOVERNMENT
OF INDIA AS REGISTRATION NUMBER
32BRSPA3455M1ZK.
EXHIBIT P2 TRUE COPY OF THE LICENCE NO. B4-
130/2020-2021 DATED 9.10.2020 ISSUED
BY THE NANNIYODE GRAMAPANCHAYATH.
EXHIBIT P3 TRUE COPY OF THE REGISTRATION
CERTIFICATE NO. SH010450150381 DATED
28.1.2020 ISSUED BY THE REGISTERING
AUTHORITY.
EXHIBIT P4 TRUE COPY OF COMPLAINT BY THE
PETITIONER BEFORE THE ASSISTANT
LABOUR OFFICER, NEDUMANGADU DATED
28.12.2020.
EXHIBIT P5 TRUE COPY OF COMPLAINT SUBMITTED BY
THE PETITIONER BEFORE THE 4TH
RESPONDENT DATED 5.1.2021 ALONG WITH
RECEIPT.
RESPONDENTS EXHIBITS: NIL
