Haridas Nanji and Sons v. State of Kerala, Commissioner of Police, Station House Officer (Mattancherry), and CITU Union, Jew Town, Kochi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942** ## **W.P.(C) No.1589 OF 2021(W)** ## **PETITIONER/S:** **HARIDAS NANJI AND SONS BAZAR ROAD, MATTANCHERRY, KOCHI-682002, REPRESENTED BY ITS PARTNER MR DHRUV HITESH DATTANI.** **BY ADVS. SRI.P.BENNY THOMAS SRI.D.PREM KAMATH SRI.TOM THOMAS (KAKKUZHIYIL) SHRI.ABEL TOM BENNY SHRI.JYOTHISH KRISHNA SMT.MEENAKSHY S DEV SHRI.AHAMMEAD SACHIN K. SHRI.KURIAN OOMMEN THERAKATH** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 COMMISSIONER OF POLICE KOCHI CITY, KOCHI-682035.** - **3 THE STATION HOUSE OFFICER MATTANCHERRY POLICE STATION, KOCHI-682002.** - **4 CITU UNION JEW TOWN, KOCHI-682002, REPRESENTED BY ITS SECRETARY.** **R1-R3 BY GOVERNMENT PLEADER** ## **OTHER PRESENT:** ## **SRI SUNIL NATH N.B- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.1589 OF 2021(W) 2 ## **JUDGMENT** The petitioner, a partnership firm engaged in the business of exporting spices, having its warehouse in Jew Town, Mattancherry, in building bearing No.7/739, Ellickal Subramania Temple Road, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent Station House Officer to afford adequate and effective protection to the petitioner, its permanent labourers, staff as well as to the warehouse in building No.7/739, Ellickal Subramania Temple Road, to conduct business without any disturbance, hindrance, obstruction or threats from the representatives of 4[th] respondent union and its members or any other person or persons on their behalf. The petitioner has also sought for an order directing the 3[rd] respondent Station House Officer to act on Ext.P3 complaint dated 09.01.2021 made by the petitioner and take appropriate action against the representatives of 4[th] respondent and its members, whenever illegal and unlawful activities committed by them is reported to 3[rd] respondent, and also to ensure that adequate and effective protection is provided to petitioner to conduct its business without any disturbance, hindrance, obstruction or threats from the representatives of 4[th] respondent and its members or any W.P.(C) No.1589 OF 2021(W) 3 other person or persons on their behalf. 2. In the writ petition, it is stated that the petitioner has six permanent workers who are represented by the 4[th] respondent union. As and when there is large requirement for additional workers, the petitioner used to engage the workers of AITUC union, purely on requirement basis. On 19.09.2019, few of the permanent workers of the petitioner firm as well as the additional workers from AITUC were unavailable and in such situation, the petitioner had to engage two or three workers from the 4[th] respondent union. The grievance of the petitioner is that the members of the 4[th] respondent union is causing physical obstruction, claiming engagement during the days work was being carried out by the regular workers of the petitioner firm. The petitioner submitted Ext.P3 complaint dated 09.01.2021 before the 3[rd] respondent Station House Officer and thereafter, moved this writ petition before this Court, seeking the aforesaid reliefs. 3. On 20.01.2021, 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 the 4[th] respondent, returnable by 25.01.2021. The learned Government Pleader was directed to W.P.(C) No.1589 OF 2021(W) 4 get instructions. 4. On 25.01.2021, when this writ petition came up for consideration, this Court passed the following order; “The 3[rd] respondent Station House Officer shall take necessary steps to ensure that there is no threat to law and order in the locality at the instance of the 4[th] respondent or its workers.” 5. Along with the memo file by the learned Government Pleader dated 22.01.2021, a statement of the 3rd respondent Station House Officer is placed on record, wherein it is stated that there is some labour disputes between the petitioner and the workers of the 4th respondent union, which have to be resolved by the concerned Labour Officer. 6. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for respondents 1 to 3. Though, on 25.01.2021, time was sought for filing counter affidavit of the 4th respondent, by a learned counsel, today, when this writ petition is taken up for consideration, none appears for the 4th respondent. 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 W.P.(C) No.1589 OF 2021(W) 5 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 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-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. W.P.(C) No.1589 OF 2021(W) 6 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 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 W.P.(C) No.1589 OF 2021(W) 7 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 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 W.P.(C) No.1589 OF 2021(W) 8 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 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 learned counsel for the petitioner would submit that after the interim order dated 25.01.2021, the 3rd respondent W.P.(C) No.1589 OF 2021(W) 9 Station House Officer has taken necessary steps to ensure that there is no threat to law and order in the locality, at the instance of the workers of the 4th respondent union. The learned Government Pleader, on instructions, would submit that, at present, there is no law and order issues in the locality and there are certain disputes between the petitioner and the 4th respondent union. Having considered the pleadings and materials on record and also the submission made by the learned counsel on both sides, this writ petition is disposed of with the following directions; (i) The 3[rd] respondent Station House Officer shall take necessary steps to ensure that there is no threat to law and order in the locality, at the instance of 4[th] respondent or its workers, in connection with the loading and unloading activities in the warehouse of the petitioner. (ii) In case there is any threat to the life and property of the petitioner from the side of 4[th] respondent or its workers, the petitioners 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/-** **JUDGE** MIN W.P.(C) No.1589 OF 2021(W) 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE TABLE OF THE CALCULATION GIVEN BY THE 4TH RESPONDENT FOR PAYMENT OF WAGES TO THEIR MEMBERS.** **EXHIBIT P2 TRUE COPY OF THE AGREEMENT DATED 05.10.2020. EXHIBIT P3 TRUE COPY OF THE COMPLAINT DATED 09.01.2021 SUBMITTED BY THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT DATED 13.01.2021.**