Haridas Nanji And Sons vs State Of Kerala
2021 Latest Caselaw 7170 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

    TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942

                       W.P.(C) No.1589 OF 2021(W)


PETITIONER/S:

                HARIDAS NANJI AND SONS
                BAZAR ROAD, MATTANCHERRY, KOCHI-682002,
                REPRESENTED BY ITS PARTNER
                MR DHRUV HITESH DATTANI.

                BY ADVS.
                SRI.P.BENNY THOMAS
                SRI.D.PREM KAMATH
                SRI.TOM THOMAS (KAKKUZHIYIL)
                SHRI.ABEL TOM BENNY
                SHRI.JYOTHISH KRISHNA
                SMT.MEENAKSHY S DEV
                SHRI.AHAMMEAD SACHIN K.
                SHRI.KURIAN OOMMEN THERAKATH

RESPONDENT/S:

      1         STATE OF KERALA
                REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT,
                SECRETARIAT, THIRUVANANTHAPURAM-695001.

      2         COMMISSIONER OF POLICE
                KOCHI CITY, KOCHI-682035.

      3         THE STATION HOUSE OFFICER
                MATTANCHERRY POLICE STATION,
                KOCHI-682002.

      4         CITU UNION
                JEW TOWN, KOCHI-682002,
                REPRESENTED BY ITS SECRETARY.

                R1-R3 BY GOVERNMENT PLEADER

OTHER PRESENT:

                SRI SUNIL NATH N.B- GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.1589 OF 2021(W)

                                   2



                              JUDGMENT

The petitioner, a partnership firm engaged in the business of

exporting spices, having its warehouse in Jew Town, Mattancherry,

in building bearing No.7/739, Ellickal Subramania Temple Road,

has filed this writ petition under Article 226 of the Constitution of

India, seeking a writ of mandamus commanding the 3 rd respondent

Station House Officer to afford adequate and effective protection to

the petitioner, its permanent labourers, staff as well as to the

warehouse in building No.7/739, Ellickal Subramania Temple Road,

to conduct business without any disturbance, hindrance,

obstruction or threats from the representatives of 4 th respondent

union and its members or any other person or persons on their

behalf. The petitioner has also sought for an order directing the 3 rd

respondent Station House Officer to act on Ext.P3 complaint dated

09.01.2021 made by the petitioner and take appropriate action

against the representatives of 4th respondent and its members,

whenever illegal and unlawful activities committed by them is

reported to 3rd respondent, and also to ensure that adequate and

effective protection is provided to petitioner to conduct its business

without any disturbance, hindrance, obstruction or threats from

the representatives of 4th respondent and its members or any W.P.(C) No.1589 OF 2021(W)

other person or persons on their behalf.

2. In the writ petition, it is stated that the petitioner has

six permanent workers who are represented by the 4 th respondent

union. As and when there is large requirement for additional

workers, the petitioner used to engage the workers of AITUC

union, purely on requirement basis. On 19.09.2019, few of the

permanent workers of the petitioner firm as well as the additional

workers from AITUC were unavailable and in such situation, the

petitioner had to engage two or three workers from the 4 th

respondent union. The grievance of the petitioner is that the

members of the 4th respondent union is causing physical

obstruction, claiming engagement during the days work was being

carried out by the regular workers of the petitioner firm. The

petitioner submitted Ext.P3 complaint dated 09.01.2021 before the

3rd respondent Station House Officer and thereafter, moved this

writ petition before this Court, seeking the aforesaid reliefs.

3. On 20.01.2021, when this writ petition came up for

admission, the learned Government Pleader took notice on

admission for respondents 1 to 3. Urgent notice on admission by

special messenger was ordered to the 4 th respondent, returnable

by 25.01.2021. The learned Government Pleader was directed to W.P.(C) No.1589 OF 2021(W)

get instructions.

4. On 25.01.2021, when this writ petition came up for

consideration, this Court passed the following order;

"The 3rd respondent Station House Officer shall take necessary steps to ensure that there is no threat to law and order in the locality at the instance of the 4 th respondent or its workers."

5. Along with the memo file by the learned Government

Pleader dated 22.01.2021, a statement of the 3 rd respondent

Station House Officer is placed on record, wherein it is stated that

there is some labour disputes between the petitioner and the

workers of the 4th respondent union, which have to be resolved by

the concerned Labour Officer.

6. Heard the learned counsel for the petitioner and also

the learned Government Pleader appearing for respondents 1 to 3.

Though, on 25.01.2021, time was sought for filing counter affidavit

of the 4th respondent, by a learned counsel, today, when this writ

petition is taken up for consideration, none appears for the 4 th

respondent.

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 W.P.(C) No.1589 OF 2021(W)

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.

W.P.(C) No.1589 OF 2021(W)

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 W.P.(C) No.1589 OF 2021(W)

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 W.P.(C) No.1589 OF 2021(W)

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 learned counsel for the petitioner would submit that

after the interim order dated 25.01.2021, the 3 rd respondent W.P.(C) No.1589 OF 2021(W)

Station House Officer has taken necessary steps to ensure that

there is no threat to law and order in the locality, at the instance of

the workers of the 4th respondent union. The learned Government

Pleader, on instructions, would submit that, at present, there is no

law and order issues in the locality and there are certain disputes

between the petitioner and the 4th respondent union.

Having considered the pleadings and materials on record and

also the submission made by the learned counsel on both sides,

this writ petition is disposed of with the following directions;

(i) The 3rd respondent Station House Officer shall take necessary steps to ensure that there is no threat to law and order in the locality, at the instance of 4th respondent or its workers, in connection with the loading and unloading activities in the warehouse of the petitioner.

(ii) In case there is any threat to the life and property of the petitioner from the side of 4th respondent or its workers, the petitioners shall move the 3rd respondent Station House Officer with a request for Police protection.

(iii) In case any such request for Police protection is made by the petitioner, the 3rd respondent shall take necessary action on that request, 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 JUDGE MIN W.P.(C) No.1589 OF 2021(W)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE TABLE OF THE CALCULATION GIVEN BY THE 4TH RESPONDENT FOR PAYMENT OF WAGES TO THEIR MEMBERS.

EXHIBIT P2               TRUE COPY OF THE AGREEMENT DATED
                         05.10.2020.

EXHIBIT P3               TRUE COPY OF THE COMPLAINT DATED
                         09.01.2021 SUBMITTED BY THE PETITIONER.

EXHIBIT P4               TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT
                         DATED 13.01.2021.