Kozhikode Sarvodaya Sangh Khadi Gram, S.M.Street, Kozhikode v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942** ## **WP(C).No.1281 OF 2021(I)** ## **PETITIONER :** **KOZHIKODE SARVODAYA SANGH KHADI GRAM S.M.STREET, KOZHIKODE, REPRESENTED BY ITS SECRETARY, KRISHNAKUMARAN N, AGED 58 YEARS, S/O KRISHNAN** **BY ADV. SRI.S.K.SAJU** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY COMMISSIONER OF POLICE, KOZHIKODE CITY, KOZHIKODE, PIN-673 101. 2 S.H.O OF POLICE, TOWN POLICE STATION, KOZHIKODE, PIN-673 001. 3 MUHAMMED SHANFEER P.P, SIRAJ HOUSE, PERINGALODI VAYAL, MATHOTTAM, ARAKKINAR P.O.KOZHIKODE, PIN-673 028.** **R1-2 BY GOVERNMENT PLEADER SRI SUNIL NATH N.B R3 BY ADV. SHRI.JAYKAR.K.S.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- WP(C).No.1281 OF 2021(I) ## **JUDGMENT** The petitioner, which is a charitable society conducting sales and marketing of Khadi products, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 2 to afford sufficient police assistance/protection to carry out its business activities, without any let or hindrance from the 3[rd] respondent or his men, associates or agents. The petitioner has also sought for a writ of mandamus commanding respondents 1 and 2 to effectively maintain law and order; and a direction to respondents 1 and 2 to consider and take immediate action on Ext.P6 complaint dated 10.12.2020 pending before the 2[nd] respondent Station House Officer. The 3[rd] respondent is one of the employees of the petitioner Society, who has been issued with memos alleging dereliction of duty, dishonest dealings, misappropriation, etc. On 22.01.2020, the 3[rd] respondent was issued with Ext.P1 showcause notice, which was followed by Ext.P2 notice dated 04.03.2020 informing about serious discrepancies found in the -3- WP(C).No.1281 OF 2021(I) stock, on the inspection conducted on 31.03.2019. Alleging that the explanation offered by the 3[rd] respondent is not satisfactory, he was issued with Ext.P3 notice dated 19.08.2020, to show-cause why disciplinary action should not be initiated against him. Ext.P3 show-cause notice was followed by Ext.P4 charge sheet dated 11.11.2020. The grievance of the petitioner is that the 3[rd] respondent has placed certain hoardings and boards with obscene and abusive remarks against the petitioner and its employees, obstructing the way to Khadi Emporium at S.M.Street, Kozhikode. The document marked as Ext.P5 is the photographs of the flex boards placed by the 3[rd] respondent in front of the petitioner's establishment. The petitioner submitted Ext.P6 complaint dated 10.12.2020 before the 2[nd] respondent Station House Officer and thereafter moved this writ petition before this Court seeking the aforesaid reliefs. 2. On 18.01.2021, when this writ petition came up for admission, the learned Government Pleader took notice on admission for respondents 1 and 2. This Court issued urgent -4- WP(C).No.1281 OF 2021(I) notice on admission by special messenger to the 3[rd] respondent, returnable by 25.01.2021. The learned Government Pleader was directed to get instructions from the 2[nd] respondent. 3. A counter affidavit has been filed by the 3[rd] respondent opposing the reliefs sought for in this writ petition. 4. Along with a memo filed by the learned Government Pleader, the report of the 2[nd] respondent Station House Officer is placed on record. 5. The petitioner has also filed reply affidavit to the counter affidavit filed by the 3[rd] respondent. 6. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 and 2 and also the learned counsel for the 3[rd] 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 the Act deals with duties and functions -5- ## WP(C).No.1281 OF 2021(I) 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; -6- WP(C).No.1281 OF 2021(I) "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 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 -7- WP(C).No.1281 OF 2021(I) 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 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 -8- WP(C).No.1281 OF 2021(I) 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 the instant case, as borne out from the pleadings and materials on record and also the submissions made by the learned counsel on both sides, disciplinary proceedings have already been initiated against the 3[rd] respondent, by issuing Ext.P4 memo of charges. The grievance of the petitioner is against the agitation/protest made by the 3[rd] respondent in front of its establishment. An interference by police on the agitation/protest made by the 3[rd] respondent is warranted only when there is a law and order issues. Any agitation/protest by the 3[rd] respondent should be in a democratic manner, without causing any obstruction whatsoever to the smooth functioning of the petitioner's -9- WP(C).No.1281 OF 2021(I) establishment. In case there is any law and order issues in connection with agitation/protest made by the 3[rd] respondent in front of the petitioner's establishment or if such agitation/protest is causing any obstruction to the smooth functioning of that establishment, the petitioner can approach the 2[nd] respondent Station House Officer with a proper complaint, in which event the 2[nd] respondent shall take necessary action on that complaint, without any delay, taking note of the statutory provisions referred to hereinbefore and also the law laid down in the decisions referred to supra. This writ petition is disposed of as above. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/10/3 -10- WP(C).No.1281 OF 2021(I) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE NOTICE DATED 22.1.2020 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT** **EXHIBIT P2 A TRUE COPY OF THE NOTICE DATED 4.3.2020 EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 19.8.2020** **EXHIBIT P4 A TRUE COPY OF THE CHARGE SHEET DATED 11.11.2020 ISSUED BY THE MANAGEMENT TO THE 3RD RESPONDENT EXHIBIT P5 PHOTOGRAPHS OF FLEX BOARD (4 NOS) EXHIBIT P6 A TRUE COPY OF THE COMPLAINT DATED 10.12.2020 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT**