Gigi Dilip v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942** ## **WP(C).No.14672 OF 2020(H)** ## **PETITIONER/S:** **GIGI DILIP, AGED 48 YEARS PROPRIETRIX, M/S.SURYA GAS AGENCIES, CORREYA ROAD, PACHALAM, KOCHI- 682012.** **BY ADV. SRI.BASANT BALAJI** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**HOME DEPARTMENT, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE DEPUTY COMMISSIONER OF POLICE**| ||**ERNAKULAM CITY, ERNAKULAM - 682031.**| |**3**|**THE CIRCLE INSPECTOR OF POLICE**| ||**ERNAKULAM TOWN POLICE STATION,**| ||**ERNAKULAM - 682 031.**| |**4**|**THE SUB INSPECTOR OF POLICE**| ||**ERNAKULAM TOWN POLICE STATION,**| ||**ERNAKULAM - 682031.**| |**5**|**P.K.ANILKUMAR**| ||**PRESIDENT, ALL KERALA GAS AGENCIES THOZHILALI**| ||**UNION (CITU), ERNAKULAM DISTRICT COMMITTEE,**| ||**EMS MANDIRAM, KALABHAVAN ROAD,**| ||**ERNAKULAM NORTH, KOCHI- 682017.**| -2- W.P.(C). No. 14672 of 2020 **6 K.K.KALESAN, SECRETARY, ALL KERALA GAS AGENCIES THOZHILALI UNION (CITU), ERNAKULAM DISTRICT COMMITTEE, EMS MANDIRAM, KALABHAVAN ROAD, ERNAKULAM, NORTH, KOCHI-682017.** **7 SUNILKUMAR T.P. THEKKOTTU HOUSE, BOAT JETTY ROAD, VADUTHALA, ERNAKULAM - 682 023.** **8 SANTHOSH KUMAR T.P. THEKKOOTTU HOUSE, BOAT JETTY ROAD, VADUTHALA, ERNAKULAM - 682023.** - **9 ADDL.R9. THE DISTRICT LABOUR OFFICER, ERNAKULAM, KUNNUMPURAM, PADAMUGHAL, VAZHAKALA, KAKKANAD-682 030** **IS SUO MOTU IMPLEADED AS PER ORDER DATED 25-09-2020** **R5-8 BY ADV. SRI.K.S.ARUN KUMAR R5-8 BY ADV. SRI.JUSTINE JACOB** ## **OTHER PRESENT:** ## **SRI P.P. THAJUDHEEN- SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- W.P.(C). No. 14672 of 2020 ## **JUDGMENT** The petitioner, who is a widow with two daughters, is running an agency for the distribution of LPG cylinders, namely, Surya Gas Agencies, Correya Road, Pachalam, Kochi, which was originally started by her husband in the year 1980, who died in the year 2012. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 2 to 4 to afford sufficient police protection for the life of the petitioner and her staff working in the office of Surya Gas Agencies. The petitioner has also sought for a writ of mandamus commanding respondents 2 to 4 to afford sufficient police protection for loading and unloading of LPG cylinders and also for supply of LPG cylinders from the godown of Surya Gas Agencies, in vehicles, to the houses of the customers, by persons who are ready to work. 2. Going by the averments in the writ petition, there are 8 delivery boys, 2 drivers and 2 office staff in Surya Gas Agencies. LPG cylinders are being distributed in vans owned by the petitioner, through the concerned delivery boy attached to each unit. The delivery boys are paid remuneration as -4- W.P.(C). No. 14672 of 2020 prescribed under the Minimum Wages Act, 1948. Whenever there is revision of wages, that is also being paid. Respondents 5 and 6 are the office bearers of All Kerala Gas Agencies Thozilali Union (CITU), Ernakulam District Committee and respondents 7 and 8 are the delivery boys attached to that trade union. In the writ petition, it is alleged that, ever since 08.07.2020, the workers are taking recourse to 'go slow' demanding that the delivery boys should be paid Rs.21,000/- per month as their wages. The delivery boys who are ready to supply LPG cylinders are also threatened by respondents 5 to 8 and due to fear, those delivery boys are also supplying only 10 cylinders per day, instead of 50 cylinders per day. The petitioner has submitted Ext.P1 representation before the additional 9[th] respondent District Labour Officer, Ernakulam, with copy to the 2[nd] respondent Deputy Commissioner of Police, Ernakulam City. The petitioner has also submitted Ext.P3 complaint before the 3[rd] respondent Sub Inspector of Police, Ernakulam Town Police Station seeking police protection. 3. On 21.07.2020, when this writ petition came up for admission, this Court admitted the matter on file. The learned -5- W.P.(C). No. 14672 of 2020 Government Pleader took notice for respondents 1 to 4. Urgent notice by speed post was ordered to respondents 5 to 8, returnable within ten days. On 21.07.2020 this Court passed an interim order, which reads thus: “In the meantime, there shall be an interim direction as prayed for, directing respondents 3 and 4 to ensure that law and order is maintained and afford adequate and effective police protection to the petitioner and her employees for loading and unloading of LPG cylinders and to supply the same from the godown of the petitioner to houses of the customers.” 4. A counter affidavit has been filed by respondents 5 to 8 opposing the reliefs sought for in this writ petition. In the counter affidavit, it is alleged that, the petitioner failed to take any action on Ext.R5(A) demand made by the trade union, on 21.03.2020, for revision of wages and other benefits. On 03.07.2020, the trade union issued Ext.R5(B) notice, to which the petitioner submitted Ext.R5(C) reply dated 06.07.2020. On 08.07.2020, respondents 5 to 8 had gone to the office and discussed the matter with the petitioner, peacefully. They did not cause any obstruction or threat. Though the Taluk Supply Officer, Kanayannur, vide Ext.R5(D) order dated 30.11.2019, prohibited supply of LPG Cylinders on two wheelers, the -6- W.P.(C). No. 14672 of 2020 petitioner has not provided sufficient number of vans or similar vehicles for the supply of LPG cylinders. On 14.07.2020, the petitioner engaged few persons other than the permanent workers for the supply of LPG cylinders, which was obstructed by respondents 5 to 8, as it was illegal. The trade union sought interference of the additional 9[th] respondent District Labour Officer by submitting Ext.R5(E) letter dated 09.07.2010. Though a conciliation meeting was scheduled on 30.07.2020, it was postponed due to Covid-19 pandemic situation. Respondents 5 to 8 would contend that, since conciliation proceedings are pending before the District Labour Officer, the petitioner cannot seek interference of this Court. 5. The petitioner has filed reply affidavit, contending that, she is yet to receive Ext.R5(A) demand made by the trade union. The workers have no grievance on the wages paid and they are being paid the prescribed wages. Only due to the intervention of respondents 5 and 6, the workers started disruption of the supply of LPG cylinders, demanding hike in wages. The demand for wages at the rate of Rs.21,000/- per month is contrary to the settlement in Ext.P7 -7- W.P.(C). No. 14672 of 2020 memorandum of settlement dated 27.03.2017, in which the State Unit of All Kerala Gas Agencies Thozilali Union (CITU) agreed to the minimum wages as per Government notification dated 21.12.2016, till a notification is issued by the Government fixing minimum wages for the workers in LPG sector. The petitioner is having three vehicles for delivery of LPG cylinders, covered by Exts.P8 to P10 certificates of registration. Eversince 08.07.2020, respondents 5 to 8 are causing obstructions to the supply of LPG cylinders from the godown of the petitioner. Though additional 9[th] respondent District Labour Officer convened a meeting on 30.07.2020, the same was adjourned since respondents 5 and 6 were absent. 6. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 to 4 and additional 9[th] respondent, and also the learned counsel for respondents 5 to 8. 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 the Act deals with duties and functions -8- W.P.(C). No. 14672 of 2020 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- -9- W.P.(C). No. 14672 of 2020 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." 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 -10- W.P.(C). No. 14672 of 2020 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 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 -11- W.P.(C). No. 14672 of 2020 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 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 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 -12- W.P.(C). No. 14672 of 2020 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. Respondents 5 to 8 and the members of the trade union, can certainly resort to strike as one of the modes of recognised form of expression. The right to strike as part of collective bargaining is recognised in law only so long as it is peaceful. The striking workers must obey civilised norms in the battle and they cannot be permitted to take law into their own hands. They should desist from using vulgar and intimidating language. They have no legal right to obstruct ingress and egress of the staff, customers and also the willing workers of the petitioner or to cause any damage to the property. When there are acts of violence by the striking workers, the Management is entitled to get adequate and effective Police protection. However, an order for Police protection cannot be claimed to frustrate and thwart the attempt of the workers and their trade unions to raise an -13- W.P.(C). No. 14672 of 2020 industrial dispute or the competent authority in holding conciliation proceedings under Section 12 of the Industrial Disputes Act for amicable settlement of that dispute. 13. The learned Special Government Pleader, on instructions, would submit that in terms of the interim order passed by this Court, respondents 3 and 4 have rendered adequate and effective police protection and taken necessary steps to ensure that law and order is maintained in that area. 14. The learned counsel for respondents 5 to 8 would submit that the office bearers of the trade union or its members have no intention to cause any obstruction to the smooth functioning of the office and godown of the petitioner or the distribution of LPG cylinders. They have also no intention to take law into their own hands. They are prepared to cooperate with conciliation proceedings before the additional 9[th] respondent District Labour Officer. 15. The learned counsel for the petitioner would submit that the Management has no intention to deny the legal rights of the workers and that, the Management is also prepared to cooperate with conciliation proceedings before the additional 9[th] respondent District Labour Officer. -14- W.P.(C). No. 14672 of 2020 16. Having considered the submissions made by the learned counsel for both sides, this writ petition is disposed of by directing the additional 9[th] respondent District Labour Officer to proceed with the conciliation proceedings, in accordance with law, and by directing respondents 3 and 4 to maintain law and order in the business premises of the petitioner, in case of any threat or obstruction by respondents 5 to 8 or their supporters. No order as to costs. **Sd/ANIL K. NARENDRAN JUDGE** das -15- W.P.(C). No. 14672 of 2020 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DTD. 09/07/2020 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE COMPLAINT DTD. 13/07/2020 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE S.R.O.NO.785/2016 DTD. 21/12/2016.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DTD. 25/01/2018 IN W.P.(C) NO.22051/2016.** - **EXHIBIT P7 TRUE COPY OF THE MEMORANDUM OF SETTLEMENT DATED 27/03/2017.** - **EXHIBIT P8 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER'S VEHICLE BEARING REGISTRATION NO.KL-07AN-815.** - **EXHIBIT P9 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER'S VEHICLE BEARING REGISTRATION NO.KL-07BW-9708.** - **EXHIBIT P10 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER'S VEHICLE BEARING REGISTRATION NO.KL-07BY-2964.** - **EXHIBIT P11 TRUE COPY OF THE MINUTES OF THE MEETING DATED 30/07/2020 OF THE DISTRICT LABOUR OFFICER ERNAKULAM.**