Shijina Ayub Khan vs The District Police Chief
2021 Latest Caselaw 10664 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943

                   WP(C).No.1683 OF 2021(I)


PETITIONER:

              SHIJINA AYUB KHAN
              AGED 35 YEARS
              W/O. AYUB KHAN, PROPRIETOR,
              M/S. STEELLANDS,
              THAZHE VETTIPURAM,
              RING ROAD,
              PATHANAMTHITTA DISTRICT - 689 645.

              BY ADVS.
              SRI. K.SHAJ
              SRI. RENJIT GEORGE
              SMT. UMMUL FIDA
              SRI. ANANDU R.
              SRI. JOSSY S. KATTUR
              SRI. JOSEPH MARY DAS
              SRI. ARUL K.S
              SRI. C.IJLAL
              SRI. BHARAT VIJAY P.
              SMT. NEERAJA GOWRI A.S
              SRI. ARUN CHAND
              SRI. MAJID MUHAMMED K.
              SRI. SHYJU C. T

RESPONDENTS:

     1        THE DISTRICT POLICE CHIEF
              PATHANAMTHITTA,
              THAZHEVETTIPRAM,
              PATHANAMTHITTA DISTRICT,
              KERALA - 689 645.

     2        THE STATION HOUSE OFFICER
              PATHANAMTHITTA POLICE STATION,
              PATHANAMTHITTA DISTRICT,
              KERALA - 689 645.
 W.P(C).No.1683 OF 2021

                              2


       3      THE DISTRICT LABOUR OFFICER
              OFFICE OF THE DISTRICT LABOUR OFFICER,
              KUTTIPLAKKAL BUILDING,
              MARKET ROAD,
              PATHANAMTHITTA - 689 645.

       4      THE ASSISTANT LABOUR OFFICER
              OFFICE OF THE ASSISTANT LABOUR OFFICE,
              KUTTIPLAKKAL BUILDING,
              MARKET ROAD,
              PATHANAMTHITTA - 689 645.

       5      THE KERALA HEADLOAD WORKERS (REGULATION OF
              EMPLOYMENT AND WELFARE) SCHEME
              PATHANAMTHITTA DISTRICT
              COMMITTEE REPRESENTED BY ITS CHAIRMAN,
              WELFARE FUND OFFICE,
              NEAR PRIVATE BUS STAND,
              PATHANAMTHITTA - 689 645.

       6      TALUK HEADLOAD AND GENERAL WORKERS UNION
              (CITU)
              PATHANAMTHITTA,
              PATHANAMTHITTA DISTRICT - 689 645.

       7      PATHANAMTHITTA DISTRICT HEADLOAD AND GENERAL
              WORKERS CONGRESS (INTUC)
              PATHANAMTHITTA - 689 645.

       8      HEADLOAD GENERAL WORKERS UNION (BMS)
              PATHANAMTHITTA - 689 645.

       9      PATHANAMTHITTA DISTRICT HEADLOAD AND GENERAL
              WORKERS COUNCIL (AITUC)
              PATHANAMTHITTA - 689 645.

       10     RASHID
              MEMBER, TALUK HEADLOAD AND GENERAL WORKERS
              UNION (CITU),
              PATHANAMTHITTA - 689 645.

       11     SURESH
              MEMBER, TALUK HEADLOAD AND GENERAL WORKERS
              UNION (CITU), PATHANAMTHITTA - 689 645.
 W.P(C).No.1683 OF 2021

                              3

       12     ASHOKAN, MEMBER,
              HEADLOAD GENERAL WORKERS UNION (BMS),
              PATHANAMTHITTA - 689 645.

       13     RAJAN, MEMBER,
              HEADLOAD GENERAL WORKERS UNION (BMS),
              PATHANAMTHITTA - 689 645.

       14     PRASAD, MEMBER,
              HEADLOAD GENERAL WORKERS UNION (BMS),
              PATHANAMTHITTA - 689 645.

       15     MASOOD, MEMBER, PATHANAMTHITTA DISTRICT
              HEADLOAD AND GENERAL WORKERS CONGRESS
              (INTUC),
              PATHANAMTHITTA - 689 645.

              R5 - SRI. K.SIJU
              R6, R10 - R11 - SRI. T.P.PRADEEP
              R6, R10 - R11 - SRI. AJAI JOHN
              R8 - SRI. P. VINODKUMAR
              SRI. SUNIL NATH N.B - GOVERNMENT PLEADER


     THIS WRIT PETITION (CIVIL) HAVING COME UP           FOR
ADMISSION ON 30.03.2021, THE COURT ON THE SAME           DAY
DELIVERED THE FOLLOWING:
 W.P(C).No.1683 OF 2021

                                       4

                                JUDGMENT

The petitioner, who is the proprietor of M/s.Steellands

engaged in the business of supply and sale of building

materials has filed this writ petition under Article 226 of the

Constitution of India seeking a writ of mandamus

commanding respondents 1 and 2 to provide adequate police

protection for the loading and unloading work in her

establishment, in a peaceful and smooth manner, without any

obstruction from the members of respondents 6 to 9 unions,

including respondents 10 to 15, or anybody under them. The

petitioner has also sought for an order directing respondents 1

to 5 to take appropriate action on Ext.P2 complaint dated

15.01.2021. In the writ petition, it is alleged that,

respondents 6 to 9 Unions and the headload workers under

those unions, including respondents 10 to 15, are causing

obstruction to the loading and unloading activities in the

petitioner's establishment, by engaging the registered workers

who have been issued with Ext.P5 series of identity cards

under Rule 26A(3) of the Kerala Headload Workers Rules,

1981. The petitioner submitted Ext.P2 complaint dated W.P(C).No.1683 OF 2021

15.01.2021 before the 1st respondent District Police Chief and

thereafter moved this writ petition before this Court seeking

the aforesaid reliefs.

2. On 21.01.2021, 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 was ordered to respondents 6 to

15 by speed post, returnable within three weeks. The learned

Government pleader was directed to get instructions and file

statement on behalf of the 2 nd respondent. The 2nd respondent

Station House Officer was directed to ensure that there is no

threat to law and order in the locality, at the instance of

respondents 6 to 15 and their supporters.

3. The learned Standing Counsel for the 5 th

respondent has filed a statement, wherein it is stated that the

functional operation of the scheme under the Kerala Headload

Workers (Regulation of Employment and Welfare) Scheme,

1983, is not extended to the area in which the petitioner's

establishment is situated.

W.P(C).No.1683 OF 2021

4. The 8th respondent Union has filed a counter

affidavit opposing the relief sought for in this writ petition.

5. 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, the

learned counsel for respondents 6, 10 and 11 and also the

learned counsel for the 8th respondent.

6. 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 W.P(C).No.1683 OF 2021

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.

7. 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."

8. In Manohar Lal Sharma v. Principal Secretary W.P(C).No.1683 OF 2021

[(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].

9. 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, W.P(C).No.1683 OF 2021

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.

10. 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 W.P(C).No.1683 OF 2021

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 W.P(C).No.1683 OF 2021

other circumstances also which would justify grant of such

direction in the facts of a particular case.

11. The learned counsel for the petitioner would submit

that in the petitioner's establishment, which is not situated in

a scheme covered area, the loading and unloading activities

are undertaken by her own employees, who are holding

Ext.P5 series of identity cards.

12. The learned Standing Counsel for the 5 th

respondent Headload Workers Welfare Board would submit

that the petitioner's establishment is not situated in a scheme

covered area.

13. The learned Government Pleader, on instructions,

would submit that after the interim order of this Court there is

no law and order issues in the locality.

14. The learned counsel for party respondents would

submit that, the headload workers under the unions were

being engaged in the petitioner's establishment, when there

was requirement of additional headload workers, in addition to

the petitioner's own workers who are holding Ext.P5 series of

identity cards.

W.P(C).No.1683 OF 2021

Having considered the pleadings and materials on record

and also the submissions made by the learned counsel on

both sides, this writ petition is disposed of with the following

directions:-

(i) The 2nd respondent Station House Officer shall take necessary steps to ensure that there is no threat to law and order in the locality, in connection with the loading and unloading activities in the petitioner's establishment by engaging the permanent workers holding Ext.P5 series of identity cards, from the members of respondents 6 to 9 unions, including respondents 10 to 15.

(ii) In case there is any threat to law and order in the locality or any threat to the life of the petitioner and her workers, from the members of respondents 6 to 9 Unions including respondents 10 to 15, in connection with any loading and unloading activities in her establishment by engaging the permanent workers holding Ext.P5 series of identity cards, the petitioner shall move the 2nd respondent with a request for Police protection.

(iii) In case any such request for Police protection is made by the petitioner, the 2 nd respondent shall take necessary action on that request, without any delay, taking note of the statutory provisions W.P(C).No.1683 OF 2021

referred to hereinbefore and also the law laid down in the decisions referred to supra. No order as to costs.

Sd/-

ANIL K. NARENDRAN JUDGE SPR W.P(C).No.1683 OF 2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF PHOTOGRAPHS SHOWING SOME OF THE RESPONDENTS AND MEMBERS OF RESPONDENT 6 TO 9 UNIONS IN THE OFFICE OF THE BUSINESS PREMISES OF THE PETITIONER.

EXHIBIT P2 THE TRUE COPY OF REPRESENTATION DATED 15/01/2021 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT BY EMAIL.

EXHIBIT P3 THE TRUE COPY OF PRINTOUT OF THE MAIL SENT BY THE PETITIONER TO THE 1ST RESPONDENT.

EXHIBIT P4 THE TRUE COPY OF RECEIPT ISSUED BY THE 2ND RESPONDENT TO THE HUSBAND OF THE PETITIONER.

EXHIBIT P5 THE TRUE COPY OF RULE 26A CARDS ISSUED TO THE WORKERS OF THE PETITIONER.

EXHIBIT P6 THE TRUE COPY OF ENDORSEMENT OF RECEIPT MADE BY THE 4TH RESPONDENT IN A COPY OF EXHIBIT P1 TO THE PETITIONER.

EXHIBIT P7 THE TRUE COPY OF ENDORSEMENT OF RECEIPT MADE BY THE 5TH RESPONDENT IN A COPY OF EXHIBIT P1 TO THE PETITIONER.

EXHIBIT P8 THE TRUE COPY OF PHOTOGRAPHS OF THE INTERVENTION OF THE 2ND RESPONDENT AND OTHER POLICEMEN IN THE PREMISES OF THE PETITIONER.

RESPONDENT'S/S EXHIBITS:       NIL.