IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.
THURSDAY, THE 16TH DAY OF NOVEMBER 2017/25TH KARTHIKA, 1939
**WP(C).No. 34264 of 2017 (G) ----------------------------**
PETITIONER(S):
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EVERSENDAI CONSTRUCTION PVT. LTD, JAWAHARLAL NEHRU ROAD, EKKADUTHANGAL, GUINDY, CHENNAI600032, REPRESENTED BY ITS MANAGER, P.V.VIJAYAKUMAR.
BY ADV. SRI.DENIZEN KOMATH
RESPONDENT(S):
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1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME, SECRETARIAT, THIRUVANANTHAPURAM-695001.
2. STATE POLICE CHIEF.
- KERALA POLICE, THIRUVANANTHAPURAM-695001.
3. ASSISTANT COMMISSIONER OF POLICE, THRIKKAKKARA, PIN-682030.
4. THE STATION HOUSE OFFICER, INFO-PARK POLICE STATION, KOCHI-30, PIN-682030.
5. THE DISTRICT LABOUR OFFICER, CIVIL STATION, KAKKANAD, ERNAKULAM, KOCHI-30, PIN-682030.
6. THE ERNAKULAM DISTRICT CONSTRUCTION WORKERS UNION (INTUC), INTUC OFFICE, THRIKKAKARA, PIN-682030.
7. THE ERNAKULAM DISTRICT BUILDING CONSTRUCTION WORKERS UNION (CITU), CITU OFFICE, THRIKKAKARA, PIN-682030.
R6,R 7 BY ADV. SRI.G.G.MANOJ R6,R 7 BY ADV. SRI.JAICE JACOB R6,R 7 BY ADV. SRI.P.M.BENZIR R1 TO R5 BY SR.GOVERNMENT PLEADER MR. P.P. THAJUDHEEN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 34264 of 2017 (G) ----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1- TRUE PHOTOCOPY OF THE RECOMMENDATION LETTER DATED 12/10/2017 SERVED FROM THE OFFICE OF 7TH RESPONDENT TO THE PETITIONER.
EXHIBIT P2- TRUE PHOTOCOPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE 4TH RESPONDENT STATION HOUSE OFFICER ON 08/07/2017.
EXHIBIT P2(A)- TRUE PHOTOCOPY OF THE RECEIPT ISSUED FROM THE OFFICE OF THE STATION HOUSE OFFICER.
EXHIBIT P3- TRUE PHOTOCOPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 11/07/2017.
EXHIBIT P3(A)- TRUE PHOTOCOPY OF THE RECEIPT ISSUED FROM THE 4TH RESPONDENT'S OFFICE.
EXHIBIT P4- TRUE PHOTOCOPY OF THE BIPARTITE AGREEMENT REACHED IN BETWEEN PETITIONER COMPANY AND VARIOUS UNIONS INCLUDING RESPONDENTS 6 AND 7.
EXHIBIT P5- TRUE PHOTOCOPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 03/10/2017.
EXHIBIT P6- TRUE PHOTOCOPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR, ERNAKULAM.
EXHIBIT P7- TRUE PHOTOCOPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE 4TH RESPONDENT STATION HOUSE OFFICER DATED 23/10/2017.
EXHIBIT P7(a) TRUE PHOTOCOPY OF THE RECEIPT ISSUED FROM THE 4TH RESPONDENT STATION HOUSE OFFICER
EXHIBIT P8 TRUE PHOTOCOPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.
EXHIBIT P9 TRUE PHOTOCOPY OF THE LETTER ISSUED FROM THE OFFICE OF 5TH RESPONDENT DATED 24.10.2017
EXHIBIT P10 TRUE PHOTOCOPY OF THE RELEVANT DETAILS FROM THE MUSTER ROLL OF THE PETITIONER-COMPANY.
RESPONDENT(S)' EXHIBITS
EXHIBIT R7(a) A COPY OF THE MEMORANDUM OF SETTLEMENT BETWEEN THE BUILDERS ASSOCIATION OF INDIA REPRESENTING VARIOUS AREAS AND THE TRADE UNIONS IN THE CONSTRUCTION FIELD.
EXHIBIT R7(a)1 TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.R7 (a).
EXHIBIT R7(b) TRUE COPY OF THE REGISTER OF WAGES FOR THE PERIOD FROM 01/10/2017 TO 15/10/2017 MAINTAINED BY THE BUILDER.
EXHIBIT R7(c) THE PHOTOCOPY OF THE JUDGMENT IN W.P.(C)No.5043 of 2015 OF THIS HONOURABLE COURT.
/TRUE COPY/
P.S. TO JUDGE.
## **P.R. RAMACHANDRA MENON**
# **& SHIRCY V, JJ.**
..............................................................................
# **W.P(C)No.34264 of 2017**
......................................................................... **Dated this the 16[th] November, 2017**
# **JUDGMENT**
## **P.R. Ramachandra Menon, J.**
## The petitioner has approached this Court with the following
prayers:
_“i. Call for the entire records pertaining to the facts pleaded in the writ petition._
_ii. Issue of writ of mandamus, any other writ, order or direction, directing respondents 1 to 4 herein to afford adequate and appropriate police aid and protection to the construction activities carried out by this petitioner at the worksite in Smart City, Kochi and against the hooligan activities of Union leaders and workers especially Respondents 6 and 7._
_iii. Issue of writ of mandamus any other writ order or direction, directing the Respondent 5 to take immediate and appropriate action against Respondents 6 and 7, insisting of 'nokkukooli' as well as coercing the petitioner to include their men in the work carried out by the petitioner._
_iv. Issue of writ of mandamus any other writ order or direction, directing the 4[th] respondent to ensure that Respondents 6 and 7 or their members are not causing obstruction to the petitioner to unload the machineries, materials and related equipments to complete the work at_
**W.P(C)No.34264 of 2017**
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_the building site._
_v. Such other reliefs that this Honourable Court deem fit and proper to grant in the interest of justice._
An interim relief was also sought for in the following terms:
_“For the reasons stated in the accompanying affidavit and writ petition it is most humbly and respectfully prayed that this Honourable Court may be pleased to direct the respondents 1 to 4 to afford interim police aid and protection to the petitioner against Respondents 6 and 7 to carry on the works of the petitioner company till its completion pending disposal of the writ petition (Civil)_
2. When the matter came up for consideration before this Court on 26.10.2017, the writ petition was admitted, also granting an interim order as prayed for. On completion of service of notice, the party respondents 6 and 7 have entered appearance and filed a counter affidavit. The petitioner has filed a reply affidavit as well. Heard the learned counsel for the parties on both sides and also the learned Government pleader.
3. The crux of the contentions raised by the petitioner is that the petitioner has set up a Company, which is engaged in the construction of steel structurals and steel erection works.
**W.P(C)No.34264 of 2017**
**3**
The Head Office is stated as in Chennai and various materials including Beams are being brought from Chennai. The remaining work is being done here in the Company, for which they have trained/expert workers. It is stated that the activities being performed by the petitioner do not come within the purview of the Kerala Head Load Workers Act, 1978 and that it is without any regard to the nature of operation, that the respondents 6 and 7 have sought to pressurize the petitioner to engage the persons under them. By virtue of the nature of engagement, the request was not possible to be accepted by the petitioner, when the party respondents took law into their hands and forcefully obstructed the operation of the Unit, causing huge loss to the petitioner. The matter was reported to the Police. It is stated that pursuant to Ext.P8 complaint to the police and also before the Labour authorities, such as District Labour Officer, a Conciliation Conference was held on 24.10.2017. But respondents 6 and 7 did not turn up on that day, who were more eager in taking law into their hands, creating forceful obstruction. It is also pointed out by the learned counsel for the petitioner that the project work costing to Rs.1.3 crores has to be completed in
**W.P(C)No.34264 of 2017**
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a time bound manner and that, by virtue of the forceful obstruction caused, a sum of more than Rs.8 lakhs has already been suffered by the petitioner towards loss because of stoppage of work. It is also brought to the notice of this Court that on an earlier occasion, when there was a dispute with regard to engagement of the Headload workers, the issue was sought to be settled as borne by Ext.P4, which is a tripartite settlement. That stage is over and no more headload workers are necessary in connection with the affairs of the Company, since the work has to be done exclusively by expert workers engaged by the petitioner. Despite the factual and legal position as above, because of the mounting pressure exerted by the 6[th] respondent,
the petitioner gave employment to two persons, who are simply collecting wages without doing any work, not being expert hands. Now, a similar demand has been made by the 7[th] respondent as well, as borne by Ext.P1, which cannot be acceded to by the petitioner because of the circumstances mentioned above. There was obstruction to three fully loaded trailer trucks, which came to the premises of the petitioner on 23.10.2017 and that the respondents are not justified in taking law into their hands,
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## **W.P(C)No.34264 of 2017**
submits the learned counsel.
4. The learned counsel appearing for the party respondents submits that there was an agreement between the Union (represented by the above respondents) and the petitioner, as borne by Ext.R7(a), whereby there is an assurance to engage the workers belonging to the 6[th] and 7[th] respondent Union in terms of the settlement arrived at.
5. We do not find it necessary to go into the contents of the agreement in so far as there is no case for the respondents that the work involved is coming within the purview of the Kerala Headload Workers Act, 1978. Even otherwise, it is brought to the notice of this Court by the learned Govt. Pleader that, on two occasions, on receipt of the complaint preferred by the petitioner, the police intervened and unlawful obstruction made by the respondents was thwarted and the law and order situation was maintained. It is also pointed out that, by virtue of the recent amendment to the statute incorporating Section 9A to the Kerala Headload Workers Act, 1978(Act 20 of 1980), as per the Ordinance No.22/2017, the employer is free to engage workers of his choice.
**6**
## **W.P(C)No.34264 of 2017**
6. Since there is no dispute that the work involved is not a headload work, to come within the purview of Kerala Headload Workers Act, we find it appropriate to grant the relief to the petitioner. In the said circumstance, the respondent/Police is directed to take all necessary measures for providing effective and adequate protection to the petitioner, staff and their workers/customers or vehicles, if at all there is any threat to the law and order situation from respondents 6 and 7 or anybody under them, as and when the same is reported to the police.
Writ Petition is disposed of.
**P.R. RAMACHANDRA MENON, JUDGE**
**SHIRCY V, JUDGE**
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