Biju Antony v. Commissioner of Police, Ernakulam and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** ## **WP(C).No.3617 OF 2021(B)** ## **PETITIONER:** **BIJU ANTONY, AGED 43 YEARS S/O. ANTONY, KAKKERYIL HOUSE, P.O.PALLURUTHY VILLAGE, MUNDAMVELI DESOM, KOCHI TALUK, ERNAKULAM DISTRICT, MANAGING PARTNER, B & B CONSTRUCTIONS, KOCHI, ERNAKULAM DISTRICT.** **BY ADVS. SRI.P.G.SURESH SMT.ASWATHY KRISHNAN** ## **RESPONDENTS:** |**1**|**THE COMMISSIONER OF POLICE**| |---|---| ||**ERNAKULAM, ERNAKULAM DISTRICT, PIN - 682011.**| |**2**|**THE ASSISTANT COMMISSIONER OF POLICE,**| ||**MATTANCHERY, MATTANCHERY P.O, ERNAKULAM DISTRICT, PIN**| ||**- 682002.**| |**3**|**THE CIRCLE INSPECTOR OF POLICE**| ||**MATTANCHERY, MATTANCHERY P.O, ERNAKULAM DISTRICT, PIN**| ||**- 682002.**| |**4**|**M.A. FAKRUDHIN, AGED 58 YEARS**| ||**S/O. ABDUL KHADER, THE SECRETARY,**| ||**HEAD LOAD AND GENERAL WORKERS UNION (CITU),**| ||**KOCHI ZONE COMMITTEE, MATTANCHERY HALT,**| ||**P.O MALSYAPURI KOCHI - 680029.**| |**5**|**K.J. JACOB, AGED 68 YEARS**| ||**DISTRICT PRESIDENT, HEAD LOAD AND GENERAL WORKERS**| ||**UNION (CITU), KOCHI ZONE COMMITTEE,**| ||**MATTANCHERY HALT, P.O MALSYAPURI, KOCHI,**| ||**ERNAKULAM DISTRICT, KOCHI – 682029.**| ||**ADDL R6 IMPLEADED**| WP(C).No.3617 OF 2021(B) 2 **ADDL KERALA HEAD LOAD WORKERS WELFARE BOARD R6. REPRESENTED THROUGH ITS CHAIRMAN, SRM ROAD, ERNAKULAM NORTH, KALOOR ERNAKULAM-682 018. ADDL R6 IS IMPLEADED AS PER ORDER DATED 04-032021 IN IA 1/21 IN WP(C)3617/2021.** **R1-R3 BY GOVERNMENT PLEADER SRI SUNIL NATH N.B R4-R5 BY ADV. SRI.V.P.PRASAD R6 BY SRI.S.KRISHNA MOORTHY, SC, KHWWB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.3617 OF 2021(B) 3 ## **JUDGMENT** The petitioner, who is a contractor engaged by the Corporation of Cochin, for the construction of road in Ward No.8, on the strength of Ext.P1 work order dated 16.11.2020, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 3 to provide adequate police protection to the life and property of the petitioner and his workers from respondents 4 and 5 and their men and also to provide sufficient protection to proceed with the works at the work site. The petitioner has also sought for a writ of mandamus commanding respondents 1 to 3 to provide adequate police protection to the petitioner to unload the interlock bricks by mechanical means, without making any obstruction by respondents 4 and 5 and their men; and a writ of mandamus commanding the 2[nd] respondent to take appropriate action Ext.P2, in accordance with law. In the writ petition, it is alleged that when the supervisor employed by the petitioner started unloading the interlock bricks, using the hydraulics means, respondents 4 and 5 and others obstructed him and also the driver of the vehicle, demanding 'nokkukooli'. The supervisor of the petitioner submitted Ext.P2 WP(C).No.3617 OF 2021(B) 4 complaint dated 08.02.2021 before the 2[nd] respondent seeking police protection and thereafter, the petitioner moved this writ petition seeking the aforesaid reliefs. 2. On 11.02.2021, 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 respondents 4 and 5, returnable by 17.02.2021. The learned Government Pleader was directed to get instructions and file statement. Having considered the averments in the writ petition and also the submissions made by the learned counsel on both sides, this Court passed an interim order directing the 3[rd] respondent to ensure that there is no threat to law and order in the locality, at the instance of respondents 4 and 5 or their supporters. 3. On 17.02.2021, when this writ petition came up for consideration, the petitioner was directed to file an application to implead the Kerala Headload Workers Welfare Board, after serving a copy of that application to the learned Standing Counsel. By the order dated 04.03.2021 in I.A.No.1 of 2021, the Kerala Headload Workers Welfare Board was impleaded as additional 6[th] respondent. WP(C).No.3617 OF 2021(B) 5 4. Respondents 4 and 5 have filed counter affidavit, opposing the reliefs sought for in this writ petition. 5. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 3, the learned counsel for respondents 4 and 5 and also the learned Standing Counsel for the additional 6[th] 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 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 WP(C).No.3617 OF 2021(B) 6 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** **[(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. WP(C).No.3617 OF 2021(B) 7 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, 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 WP(C).No.3617 OF 2021(B) 8 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 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 WP(C).No.3617 OF 2021(B) 9 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. 11. During the course of arguments, the submission made by the learned counsel for respondents 4 and 5 is that, the headload workers, who are members of the union headed by respondents 4 and 5, have absolutely no intention to cause any obstruction to unloading of interlock bricks by the petitioner, by mechanical means, in connection with the construction of road in Ward No.8 of Cochin Corporation, on the strength of Ext.P1 work order. In case there is any requirement of manual labourer for loading and unloading, certainly, the pool workers of that area have WP(C).No.3617 OF 2021(B) 10 to be engaged. 12. The learned Standing Counsel for the additional 6[th] respondent would point out that the area in question is a scheme covered area and therefore, if there is any requirement of manual labourers for loading and unloading work, the petitioner has to engage the pool workers. 13. The learned counsel for the petitioner would submit that the petitioner has absolutely no objection in engaging headload workers of the concerned pool, for any loading and unloading work requiring manual labour, and the grievance of the petitioner is only against demand of nokkukooli, for the unloading work done by mechanical means. 14. The learned Government Pleader, on instructions, would submit that at present there is no law and order issues in the locality. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions: - (i) The 3[rd] respondent shall take necessary steps to ensure that there is no threat to law and order in the locality WP(C).No.3617 OF 2021(B) 11 at the instance of respondents 4 and 5 or the members of their unions, in connection with unloading of bricks using mechanical means, for the work covered by Ext.P1 work order. (ii) In case any obstruction is caused to the unloading of interlock bricks using mechanical means, in connection with the work covered by Ext.P1 work order, by respondents 4 and 5 or the members of their unions, the petitioner shall move the 3[rd] 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 3[rd] 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** JV ## **JUDGE** WP(C).No.3617 OF 2021(B) 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE WORK ORDER NOTICE ISSUED BY THE CORPORATION OF COCHIN DATED 6.11.2020.** **EXHIBIT P2** **THE TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER THROUGH HIS SUPERVISOR BEFORE THE 2ND RESPONDENT DATED 08.02.2021.**