Kishore P.P v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942** ## **WP(C).No.364 OF 2021(U)** ## **PETITIONER:** **KISHORE P.P AGED 45 YEARS** **S/O.PRABHAKARAN, PUTHANPURACKAL HOUSE, KATTAPPANA, IDUKKI DISTRICT** **BY ADVS.** **SRI.A.C.DEVASIA SMT.ANCY MATHEW SRI.MATHEW DEVASSI** ## **RESPONDENTS:** - **1 STATE OF KERALA** - **REP.BY SECRETARY TO HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001** - **2 THE SUPERINTENDENT OF POLICE KUYILUMALA, PYNAVU, IDUKKI DISTRICT, PIN 685 603** - **3 THE SUB INSPECTOR OF POLICE KATTAPPANA, KATTAPPANA POLICE STATION, IDUKKI DISTRICT, PIN 685 515** - **4 HEAD LOAD WORKERS UNION** - **BHARATHIYA MASDOOR SANGH (BMS), REP.BY ITS CONVENER, SHIJO P.P., AGED ABOUT 40 YEARS, S/O.PRABHAKARAN, PARAPPARAMBIL HOUSE, KAIRALI NAGAR,** - **KAIRALI NAGAR JUN., KATTAPPANA, BJP AND BMS OFFICE, KATTAPPANA, IDUKKI DISTRICT, PIN 685 515** - **5 HEAD LOAD WORKERS UNION REP.BY ITS CONVENOR, GEORGE ANTONY, AGED ABOUT 45 YEARS, S/O.ANTONY, VECHOOKAROTTU HOUSE, NATHUKALLU KARA, KATTAPPANA, CITU OFFICE, KATTAPPANA, IDUKKI DISTRICT, PIN 685 515** - **6 DISTRICT LABOUR OFFICER IDUKKI, OFFICE AT THODUPUZHA, THODUPUZHA, IDUKKI DISTRICT PIN 685 584** **R1-3, R6 BY SMT A.C.VIDHYA-GOVERNMENT PLEADER R4-5 BY ADV. SRI.R.V.SREEJITH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.364 OF 2021(U)** ## **JUDGMENT** The petitioner, who intends to conduct sale of minerals like M sand, P sand and metals in 40 cents of land in Survey No.108/4/1 in Block No.61 of Kattappana Village, taken on lease from one Roy Mathew, vide Ext.P1 lease deed dated 04.10.2020, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 3 to give adequate police protection to the petitioner for loading M sand, P sand and other materials in the property covered by Ext.P1 lease deed, into tipper lorries and other vehicles by using JCB and other machineries. The petitioner has also sought for a writ of mandamus commanding respondents 1 to 3 to restrain respondents 4 and 5 and their men from causing any illegal obstruction to the loading of P sand and M sand in the property covered by Ext.P1 lease deed, into tipper lorries by using JCB and other machineries; and a writ of mandamus commanding the 3[rd] respondent to consider Ext.P7 representation made by the petitioner and grant adequate police protection to the petitioner for the peaceful conduct of business in the property covered by Ext.P1 lease deed. ## **WP(C).No.364 OF 2021(U)** 2. The document marked as Ext.P2 is the dealers licence issued by the Senior Geologist, Idukki under the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015, which is valid for the period from 16.12.2020 to 15.12.2021 for the sale of granite (building stone) and the document marked as Ext.P3 is the licence issued by Kattappana Municipality under the provisions of the Kerala Municipality Act, 1994 for stocking and sale of building materials like metal, M sand, etc., which is valid for the period from 11.11.2020 to 31.03.2021. The document marked as Ext.P4 is a sale agreement dated 04.12.2020 of a JCB purchased by the petitioner for loading and unloading of building materials and the document marked as Ext.P5 is the GST registration certificate dated 30.11.2020, which is valid from 30.11.2020. 3. Going by the averments in the writ petition, before the inauguration of the unit, the petitioner brought M sand, P sand, metal etc., on the strength of Ext.P6 series of tax invoices, transit pass and stocked the same in the property covered by Ext.P1 lease deed. According to the petitioner, the building materials brought in tipper lorries are mechanically unloaded and the petitioner is loading P sand and M sand from his establishment into tipper 4 ## **WP(C).No.364 OF 2021(U)** lorries by using JCB. Respondents 4 and 5, who are the headload workers unions in the locality obstructed the loading of building materials into tipper lorries by using JCB. In such circumstances, the petitioner submitted Ext.P7 representation dated 23.12.2020 before the 3[rd] respondent Sub Inspector of Police, Kattappana Police Station, seeking police protection. 4. On 07.01.2021, when this writ petition came for admission the learned Government Pleader took notice on admission for respondent Nos. 1 to 3 and 6. Urgent notice on admission by special messenger was ordered to respondents 4 and 5. 5. The learned Government Pleader has filed a memo dated 25.01.2021, producing therewith the report of the 3[rd] respondent Sub Inspector of Police. In the said report, it is stated that the petitioner has brought a JCB for loading building materials in his establishment, in the property covered by Ext.P1 lease deed. Since the petitioner and the union leaders could not come to an agreement, he cannot start business on 01.01.2021. 6. Respondents 4 and 5 filed counter affidavit, contending that the loading work in the petitioner's unit is not fully mechanised and as such, the headload workers under respondents 5 ## **WP(C).No.364 OF 2021(U)** 4 and 5 are entitled to be engaged for the loading work. The petitioner, instead of approaching the Assistant Labour Officer under Section 21 of the Kerala Headload Workers Act, 1978, has approached this Court, seeking police protection. Moreover, Ext.P7 representation made by the petitioner does not disclose commission of any cognisable offence. 7. Heard the learned counsel for the petitioner, the learned Government Pleader for respondents 1 to 3 and 6 and also the learned counsel for respondents 4 and 5. 8. 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. 6 ## **WP(C).No.364 OF 2021(U)** 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. 9. 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. 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." 10. 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 7 ## **WP(C).No.364 OF 2021(U)** 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]** . 11. 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 the producers and their struggle to better their lot has the 8 ## **WP(C).No.364 OF 2021(U)** 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. 12. 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 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 9 ## **WP(C).No.364 OF 2021(U)** 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. 13. The learned counsel for the petitioner would submit that the loading of building materials like M sand, P sand and metal into tipper lorries is done in the petitioner's establishment in the property covered by Ext.P1 lease deed, mechanically, by using JCB, and the petitioner is not engaging any worker for that purpose. 14. The learned counsel for respondents 4 and 5 would submit that since the petitioner's establishment is situated in a scheme covered area, any loading and unloading activity can be 10 ## **WP(C).No.364 OF 2021(U)** undertaken, manually, only by engaging the registered pool workers in that area. 15. The learned Government Pleader would submit that, on account of the objection of the headload workers in the area, the petitioner could not commence loading of building materials into tipper lorries in his establishment, in the property covered by Ext.P1 lease deed. 16. Having considered the submissions made by the learned counsel on both sides, this Court finds that, in case the loading of building materials like M sand, P sand and metal in the petitioner's establishment, in the property covered by Ext.P1 lease deed, is undertaken mechanically, with the help of JCB and other machineries, the headload workers, who are the members of respondents 4 and 5 unions, cannot claim that they should be engaged for the loading activity in that establishment. Since the establishment is situated in a scheme covered area, the petitioner can undertake loading and unloading activity, manually, only by engaging the pool workers including those who are the members of respondents 4 and 5 unions. 17. In such circumstances, this writ petition is disposed of with the following directions:- 11 ## **WP(C).No.364 OF 2021(U)** (i) In case the petitioner is doing loading and unloading activities in his establishment, mechanically, with the help of JCB and other machineries, and if there is any obstruction to that loading and unloading activities by the headload workers, who are the members of the 4[th] and 5[th] respondent unions, the petitioner shall approach the 3[rd] respondent Sub Inspector of Police, Kattappana Police Station seeking police protection, for the loading and unloading activities, in which event, the said respondent shall consider that request and take an appropriate decision thereon, taking note of the statutory provisions referred to hereinbefore and also the law laid down in the decisions referred to supra. (ii) The 3[rd] respondent Sub Inspector of Police, Kattappana Police Station shall ensure that there is no threat to law and order in the locality, at the instance of the headload workers, who are members of respondents 4 and 5 unions, in connection with the loading and unloading activities in the petitioner's establishment. (iii) Since the petitioner's establishment is situated in a scheme covered area, any loading and unloading of building materials, manually, shall be undertaken only by engaging registered headload workers in that area, including the members of respondents 4 and 5 unions. Sd/- **ANIL K.NARENDRAN JUDGE** hmh 12 ## **WP(C).No.364 OF 2021(U)** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LEASE AGREEMENT DATED 14/10/2020 EXHIBIT P2 TRUE COPY OF THE LICENSE DATED 16/12/2020 ISSUED BY THE GEOLOGIST, IDUKKI** **EXHIBIT P3 TRUE COPY OF THE LICENSE DATED 11/11/2020 EXHIBIT P4 TRUE COPY OF THE SALE AGREEMENT IN RESPECT OF THE SAID JCB DATED 4/12/2020 EXHIBIT P5 TRUE COPY OF THE GST REGISTRATION CERTIFICATE ISSUED BY THE GOVERNMENT OF INDIA IN FAVOUR OF THE PETITIONER DATED 30/11/2020 EXHIBIT P6 TRUE COPY OF THE INVOICE AND TRANSIT PASS ISSUED BY THE DEPARTMENT OF MINING AND GEOLOGY DATED 24/12/2020, 29/12/2020, TAX INVOICE DATED 29/12/2020, TRANSIT PASS DATED 30/12/2020 EXHIBIT P7 TRUE COPY OF THE REPRESENTATION AND ITS RECEIPT DATED 23/12/2020 AND 22/12/2020 EXHIBIT P8 TRUE COPY OF THE PRESENT PHOTOGRAPHS SHOWING THE PRESENT POSITION OF THE EXT.P1 YARD RESPONDENT'S/S EXHIBITS: NIL**