Hakkim A. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942** ## **WP(C).No.2347 OF 2021(P)** ## **PETITIONER:** **HAKKIM.A., AGED 53 YEARS S/O. ABDUL SAMAD, PROPRIETOR, TAJMAHAL TILES AND GRANITES, RESIDING AT MUPPARAYIL VEETTIL, CHETTACHAL P.O, VITHURA, THIRUVANANTHAPURAM-695 551** **BY ADV. SMT.N.P.ASHA** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**HOME DEPARTMENT, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001**| |**2**|**THE STATE POLICE CHIEF,**| ||**KERALA STATE POLICE HEAD QUARTERS,**| ||**VAZHUTHACAUD, THIRUVANANTHAPURAM-695 010**| |**3**|**THE CIRCLE INSPECTOR OF POLICE,**| ||**PALODE POLICE STATION,**| ||**THIRUVANANTHAPURAM-695 562**| |**4**|**THE STATION HOUSE OFFICER,**| ||**PALODE POLICE STATION,**| ||**THIRUVANANTHAPURAM-695 562.**| |**5**|**KERALA HEADLOAD WORKERS WELFARE BOARD,**| ||**THIRUVANANTHAPURAM DISTRICT COMMITTEE OFFICE,**| ||**KAUSTHUBHAM COMPLEX, CHENTHITTA,**| ||**THIRUVANANTHAPURAM-695 036.**| WP(C).No.2347 OF 2021(P) 2 **6 SAHADEVAN, AGED 64 YEARS, CONVENOR, CENTER OF INDIAN TRADE UNIONS (CITU), UNION OFFICE, PLAVARA, PACHA P.O, PALODE, THIRUVANANTHAPURAM-695 562** **7 BAIJU, AGED 45 YEARS S/O. SADANANDAN, CONVENOR, INDIAN NATIONAL TRADE UNION CONGRESS (INTUC), UNION OFFICE, PLAVARA, PACHA P.O, PALODE, THIRUVANANTHAPURAM-695 542** **R1-4 BY SRI.SUNIL NATH N.B - GOVERNMENT PLEADER R5 BY ADV. SHRI.THOMAS ABRAHAM R6-7 BY ADV. SRI.LATHEESH SEBASTIAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.2347 OF 2021(P) 3 ## **JUDGMENT** The petitioner, who is the proprietor of Tajmahal Tiles and Granites, Nanniyodu has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 4[th] respondent Station House Officer of Palode Police Station to provide adequate and effective police protection to the petitioner to run his establishment 'Tajmahal Tiles and Granites' by employing his own employees and to prevent obstruction being caused by respondents 6 and 7 and the headload workers, who are the members of their Unions. The petitioner has also sought for a direction commanding and compelling the 4[th] respondent to restrain respondents 6 and 7 and their members from entering into the petitioner's business place and to provide adequate police protection to the life and property of the petitioner and his workers. 2. On 29.1.2021 when this writ petition came up for admission, the learned Government Pleader took notice on admission for respondents 1 to 4. The learned Standing Counsel took notice on admission for the 5[th] respondent. Urgent notice on admission by special messenger was ordered WP(C).No.2347 OF 2021(P) 4 to respondents 6 and 7, returnable by 5.2.2021. 3. On 5.2.2021 when this writ petition came up for consideration, the learned Standing Counsel for the 5[th] respondent submitted that the area in question is not a scheme covered area. The learned counsel for respondents 6 and 7 sought time to file counter affidavit. Having considered the averments in the writ petition and also the submissions made by the learned counsel on both sides, and taking note of the fact that the area in question is not a scheme covered area, this Court granted an interim order on ## 5.2.2021, which reads thus: “Having considered the averments in the writ petition and also the submissions made by the learned counsel on both sides and taking note of the fact that the area in question is not a scheme covered area, there will be an interim order directing the 4[th] respondent to ensure that there is no obstruction whatsoever to the loading and unloading activities undertaken in the petitioner's establishment, at the instance of respondents 6 and 7 or their supporters, for a period of one month.” 4. Respondents 6 and 7 have filed their counter affidavit opposing the reliefs sought for in the writ petition. 5. Along with a memo filed by the learned Government Pleader, the report of the 4[th] respondent Station WP(C).No.2347 OF 2021(P) 5 House Officer is placed on record. 6. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 4, the learned standing counsel for the 5[th] respondent and also the learned counsel for respondents 6 and 7. 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 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 WP(C).No.2347 OF 2021(P) 6 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, welltrained 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 WP(C).No.2347 OF 2021(P) 7 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 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 WP(C).No.2347 OF 2021(P) 8 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 Full Bench of this Court held that, the Act and the Rules provide for a machinery for settlement WP(C).No.2347 OF 2021(P) 9 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 petitioner's establishment, 'Tajmahal Tiles and WP(C).No.2347 OF 2021(P) 10 Granites' at Nanniyodu is admittedly situated in an area, which is not covered by the scheme formulated under the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983. The said fact is not in dispute. If that be so, the petitioner can engage his own employees for doing loading and unloading work in his establishment 'Tajmahal Tiles and Granites'. The respondents 6 and 7 or the headload workers under them cannot raise any objection or cause any obstructions to the loading and unloading work in the petitioner's establishment, by engaging his own workers. In such circumstances, this writ petition is disposed of with the following directions: i) The 4[th] respondent shall take necessary steps to ensure that there is no threat to law and order at the locality, at the instance of respondents 6 and 7 or the headload workers under them, in connection with loading and unloading activities undertaken in the petitioner's establishment by employing his own workers. WP(C).No.2347 OF 2021(P) 11 ii) In case there is any obstruction whatsoever to the loading and unloading activities undertaken in the petitioner's establishment by engaging his own workers, from the side of respondents 6 and 7 or the members of their union, the petitioner shall approach the 4[th] respondent Station House Officer with a proper request for police protection. iii) In case any such request is received from the petitioner seeking police protection, the 4[th] respondent shall consider the same and take appropriate action, 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** ab ## **JUDGE** WP(C).No.2347 OF 2021(P) 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE GST REGISTRATION CERTIFICATE ISSUED BY THE GOVERNMENT OF INDIA AS REGISTRATION NUMBER 32BRSPA3455M1ZK.** **EXHIBIT P2** - **TRUE COPY OF THE LICENCE NO. B4130/2020-2021 DATED 9.10.2020 ISSUED BY THE NANNIYODE GRAMAPANCHAYATH.** **EXHIBIT P3** - **TRUE COPY OF THE REGISTRATION CERTIFICATE NO. SH010450150381 DATED 28.1.2020 ISSUED BY THE REGISTERING AUTHORITY.** - **EXHIBIT P4 TRUE COPY OF COMPLAINT BY THE PETITIONER BEFORE THE ASSISTANT LABOUR OFFICER, NEDUMANGADU DATED 28.12.2020.** - **EXHIBIT P5 TRUE COPY OF COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 5.1.2021 ALONG WITH RECEIPT.** RESPONDENTS EXHIBITS: NIL