Bijumon C.A. & Jyothi T.K. v. State of Kerala & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** ## **WP(C).No.3990 OF 2021(W)** ## **PETITIONERS:** **1 BIJUMON C.A. AGED 40 YEARS S/O.AIYAPPAN, RESIDING AT CHOWANTEKUDIYIL HOUSE, ERUMATHALA P.O., ALUVA, ERNAKULAM DISTRICT - 683 112. 2 JYOTHI T.K. AGED 40 YEARS W/O.RANADEVAN, RESIDING AT PALAKKATNIRAPPEL, THOTTUMUGHAM P.O., ALUVA, ERNAKULAM DISTRICT - 683 105. BY ADV. SRI.ANOOP.V.NAIR** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY,**| ||**HOME DEPARTMENT, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE SUPERINTENDENT OF POLICE (ALUVA RURAL)**| ||**ALUVA, ERNAKULAM DISTRICT - 683 101.**| |**3**|**THE STATION HOUSE OFFICER**| ||**NEDUMBASSERRY POLICE STATION, NEDUMBASSERRY,**| ||**ERNAKULAM DISTRICT - 683 585.**| |**4**|**THE STATION HOUSE OFFICER**| ||**KALADY POLICE STATION, KALADY,**| ||**ERNAKULAM DISTRICT - 683 574.**| |**5**|**THE STATION HOUSE OFFICER**| ||**CHEMANGANADU POLICE STATION, CHEMANGANADU, ERNAKULAM**| ||**DISTRICT - 683 578.**| WP(C).No.3990 OF 2021(W) 2 - **6 THE DEPUTY EXCISE COMMISSIONER OFFICE OF THE DEPUTY EXCISE COMMISSIONER, KACHERIPADY, ERNAKULAM DISTRICT - 682 018.** - **7 THE TODDY WORKERS WELFARE FUND INSPECTOR DISTRICT OFFICE, JAWAN CROSS ROAD, EDAPPALLY, ERNAKULAM DISTRICT - 682 024.** - **8 K.P.ANTOO RESIDING AT KOTTAYKAL, KANJOOR P.O., ERNAKULAM DISTRICT - 683 575.** - **9 V.D.PORINJU** - **VADAKANCHERY, KANJOOR P.O., ERNAKULAM DISTRICT - 683 575.** - **10 POPPINSON RESIDING AT PANAYKKAL HOUSE, MATTOOR, KALADY, ERNAKULAM DISTRICT - 683 574.** - **11 JOSE K.A. RESIDING AT KOTTAYKKAL HOUSE, KANJOOR P.O., ERNAKULAM DISTRICT - 683 575.** - **12 MATHAYI RESIDING AT CHAKKINGAL HOUSE, EDANADU P.O., ERNAKULAM DISTRICT - 683 580.** - **13 GLEN THOMAS RESIDING AT KANJIRATHINKAL HOUSE, KANJOOR P.O., ERNAKULAM DISTRICT - 683 575.** - **14 E.J.JOYI RESIDING AT EDASSERI HOUSE, KANJOOR P.O., ERNAKULAM DISTRICT - 683 575.** - **15 PAULI PAULACHAN RESIDING AT PAYAPPILLI HOUSE, PARAPPURAM, ERNAKULAM DISTRICT - 683 575.** - **16 MARY GEORGE RESIDING AT INJAYKKAL HOUSE, MANIKKYAMANGALAM, ERNAKULAM DISTRICT - 683 574.** - **17 ELSI ANTO RESIDING AT PALLIPADAN HOUSE, KALADY, SREEMOOLANAGARAM, ERNAKULAM DISTRICT - 683 580.** WP(C).No.3990 OF 2021(W) 3 **18 ANNAMKUTTY RESIDING AT THETTALI HOUSE, CHOVARA P.O., ERNAKULAM DISTRICT - 683 571. 19 DIPSHA TODDY WORKER, T.S.NO.30, GROUP III, ALUVA EXCISE RANGE, ALUVA, ERNAKULAM DISTRICT - 683 101. R1-R6 BY GOVERNMENT PLEADER SRI SUNIL NATH N.B R7 BY ADV. SHRI.G.SANTHOSH KUMAR, SC, KTWWFB R8, R11, R13-R16 BY ADV. SRI.M.N.VEDARAJ R8, R11, R13-R16 BY ADV. SRI.S.JUSTUS R9-R10, R12, R17-19 BY ADV. SRI.K.S.ARUN KUMAR R9-R10, R12, R17-19 BY ADV. SRI.JUSTINE JACOB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.3990 OF 2021(W) 4 ## **JUDGMENT** The 1[st] petitioner is the licensee of toddy shops in Group No.1 of Aluva Excise Range, covered by Exts.P1 to P1(d) licences issued by the 6[th] respondent Deputy Excise Commissioner and the 2[nd] petitioner is the licencee of toddy shops in Group No.3 in Aluva Excise Range covered by Exts.P2 to P2(d) licences issued by the said respondent. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 2 to 6 to grant police protection to the petitioners for running their toddy shops in Aluva Excise Range, functioning under the above licenses, without any obstruction being caused by respondents 8 to 19 and their men and to function toddy shops properly during the the licensed period. The petitioners have also sought for a writ of mandamus commanding the 2[nd] respondent Superintendent of Police (Aluva Rural) to consider and dispose of Ext.P3 representation dated 08.02.2021 in accordance with law and to direct respondents 3 to 6, namely, the Station House Officers of Nedumbasserry Police Station, Kalady Police Station and Chengamanad Police Station to grant police protection to the petitioners for functioning of Toddy Shops coming under Group Nos.1 and 3 of Aluva Excise Range, covered by Exts.P1 and P2 series of licences, without any obstructions being caused by WP(C).No.3990 OF 2021(W) 5 respondents 8 to 19 and their men, during the licensed period. Going by the averments in the writ petition, respondents 8 to 19 and their men are causing obstruction to the smooth functioning of toddy shops covered by Exts.P1 and P2 series of licences. The petitioners submitted Ext.P3 representation dated 08.02.2021 before the 2[nd] respondent, with copy to respondents 3 to 5, seeking police protection, which was acknowledged by Ext.P4 series of receipts. The said representation was followed by Ext.P5 representation dated 08.02.2021 of the 2[nd] petitioner, before the 4[th] respondent Station House Officer. Alleging inaction on the part of respondents 2 to 5, the petitioners are before this Court in this writ petition seeking the aforesaid reliefs. 2. On 16.02.2021, when this writ petition came up for admission, the learned Government Pleader took notice on admission for respondents 1 to 6. Adv.G.Santhosh Kumar, the learned Standing Counsel, took notice on admission for the 7[th] respondent. Urgent notice on admission by special messenger was ordered to respondents 8 to 19, returnable by 22.02.2021. The learned Government Pleader and also the learned Standing Counsel for the 7[th] respondent were directed to get instructions. On 22.02.2021, the learned counsel for respondents 8, 11 and 13 to 16 and also the learned counsel for WP(C).No.3990 OF 2021(W) 6 respondents 9, 10, 12 and 17 to 19 sought time to file counter affidavit. The learned Government Pleader was directed to file statement, based on the instructions already received. 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 respondents 3 to 5 Station House Officers to take necessary steps to ensure that there is no threat to law and order within their respective jurisdictions in connection with any labour dispute raised by respondents 8 to 19 or their supporters. 3. Heard the learned counsel for the petitioners, learned Government Pleader for respondents 1 to 6, the learned Standing Counsel for the 7[th] respondent, the learned counsel for respondents 8,11 and 13 to 16 and also the learned counsel for respondents 9, 10, 12 and 17 to 19. 4. 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 WP(C).No.3990 OF 2021(W) 7 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. 5. 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 welldisciplined 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." 6. In **Manohar Lal Sharma v. Principal Secretary [(2014)** WP(C).No.3990 OF 2021(W) 8 **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]** . 7. 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 WP(C).No.3990 OF 2021(W) 9 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. 8. The learned counsel for the petitioners would submit that after the interim order of this Court dated 22.02.2021, the concerned Station House Officers have taken necessary steps to ensure that there is no threat to law and order within their respective jurisdiction, at the instance of respondents 8 to 19 or their supporters. 9. The learned Government Pleader would submit that at present there is no law and order issues. 10. The learned counsel for respondents 9, 10, 12 and 17 to 19 would submit that the said respondents have absolutely no intention to take law into their own hands. WP(C).No.3990 OF 2021(W) 10 11. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions: - (i) In case there is any obstruction to the functioning of the petitioners' Toddy Shops covered by Exts.P1 and P2 series of licences, in connection with any agitation/protest made by respondents 8 to 19, the petitioners shall move the respective Station House Officers with a proper request for Police protection. - (ii) In case any such request for Police protection is made by the petitioners, the respective Station House Officers 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.3990 OF 2021(W) 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LICENSE BEARING NO.518/2021 DATED 01/02/2021, FOR GROUP NO.1 OF ALUVA EXCISE RANGE ISSUED TO THE 1ST PETITIONER.** - **EXHIBIT P1(A) TRUE COPY OF THE LICENSE BEARING NO.519/2021 DATED 01/02/2021, FOR GROUP NO.1 OF ALUVA EXCISE RANGE ISSUED TO THE 1ST PETITIONER.** **EXHIBIT P1(B) TRUE COPY OF THE LICENSE BEARING NO.520/2021 DATED 01/02/2021, FOR GROUP NO.1 OF ALUVA EXCISE RANGE ISSUED TO THE 1ST PETITIONER. EXHIBIT P1(C) TRUE COPY OF THE LICENSE BEARING NO.521/2021 DATED 01/02/2021, FOR GROUP NO.1 OF ALUVA EXCISE RANGE ISSUED TO THE 1ST PETITIONER. EXHIBIT P1(D) TRUE COPY OF THE LICENSE BEARING NO.522/2021 DATED 01/02/2021, FOR GROUP NO.1 OF ALUVA EXCISE RANGE ISSUED TO THE 1ST PETITIONER. EXHIBIT P2 TRUE COPY OF THE LICENSE BEARING NO.523/2020-21 DATED 01/02/2021, FOR GROUP NO.3 OF ALUVA EXCISE RANGE ISSUED TO THE 2ND PETITIONER. EXHIBIT P2(A) TRUE COPY OF THE LICENSE BEARING NO.524/2021 DATED 01/02/2021, FOR GROUP NO.3 OF ALUVA EXCISE RANGE ISSUED TO THE 2ND PETITIONER. EXHIBIT P2(B) TRUE COPY OF THE LICENSE BEARING NO.525/2021 DATED 01/02/2021, FOR GROUP NO.3 OF ALUVA EXCISE RANGE ISSUED TO THE 2ND PETITIONER. EXHIBIT P2(C) TRUE COPY OF THE LICENSE BEARING NO.526/2021 DATED 01/02/2021, FOR GROUP NO.3 OF ALUVA EXCISE RANGE ISSUED TO THE 2ND PETITIONER.** WP(C).No.3990 OF 2021(W) 12 |**EXHIBIT P2(D)**|**TRUE COPY OF THE LICENSE BEARING NO.527/20-**| |---|---| ||**21 DATED 01/02/2021, FOR GROUP NO.3 OF**| ||**ALUVA EXCISE RANGE ISSUED TO THE 2ND**| ||**PETITIONER.**| |**EXHIBIT P3**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**08/02/2021 SUBMITTED BY THE PETITIONERS**| ||**BEFORE THE 2ND RESPONDENT SEEKING POLICE**| ||**PROTECTION AND ACKNOWLEDGMENT RECEIPT.**| |**EXHIBIT P4**|**TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT IN**| ||**PETITION NO.23168/2021 DATED 11/02/2021**| ||**RECEIVED TO THE PETITIONERS FROM THE 3RD**| ||**RESPONDENT.**| |**EXHIBIT P4(A)**|**TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT IN**| ||**PETITION NO.23375/2021 DATED 11/02/2021**| ||**RECEIVED TO THE PETITIONERS FROM THE 5TH**| ||**RESPONDENT.**| |**EXHIBIT P5**|**TRUE COPY OF THE COMPLAINT DATED 08/02/2021**| ||**BY THE 2ND PETITIONER BEFORE THE 4TH**| ||**RESPONDENT.**|