P.A Zubair v. District Police Chief, Pathanamthitta; Circle Inspector of Police, Pathanamthitta; SHO, Pathanamthitta Police Station; District Labour Officer, Pathanamthitta; Jyothish P.R.; Anil Kumar (Shop and Establishment Mazdoor Sang)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **W.P.(C) No.4723 OF 2021(M)** ## **PETITIONER/S:** **P.A ZUBAIR, AGED 53 YEARS, S/O.P.A. ABDUL KHADER, CHIEF EXECUTIVE OFFICER NANDILATH G MART, RESIDING AT DLF NEW TOWN HEIGHTS, SEAPORT AIRPORT ROAD, KAKKANAD, ERNAKULAM-682 030.** **BY ADVS. SHRI.C.S.AJITH PRAKASH SHRI.T.K.DEVARAJAN SRI.FRANKLIN ARACKAL SRI.PAUL C THOMAS SHRI.BABU M. SHRI.NIDHIN RAJ VETTIKKADAN SRI.HAARIS MOOSA SMT.DEVYANI SMT.NIKHITA ANN REBELLO SHRI.ADESH JOSHI** ## **RESPONDENT/S:** - **1 DISTRICT POLICE CHIEF, OFFICE OF THE DISTRICT POLICE CHIEF, THAZHEVETTIPRAM, PATHANAMTHITTA 689 645.** - **2 CIRCLE INSPECTOR OF POLICE, PATHANAMTHITTA POLICE STATION, PATHANAMTHITTA 689 645.** - **3 SHO OF POLICE, PATHANAMTHITTA POLICE STATION, PATHANAMTHITTA 689 645.** - **4 DISTRICT LABOUR OFFICER, DISTRICT LABOUR OFFICE, KUTTIPLAKKAL BUILDING, MARKET ROAD, PATHANAMTHITTA 689 645.** W.P.(C) No.4723 OF 2021(M) 2 **5 JYOTHISH P.R, PANACKALMELETIL HOUSE, KUMBAZHA P.O., PATHANAMTHITTA 689 653.** **6 ANIL KUMAR,GENERAL SECRETARY SHOP AND ESTABLISHMENT MAZDOOR SANG (BMS), DOCTORS LANE, PATHANAMTHITTA 689 645.** **R1-R4 BY GOVERNMENT PLEADER R5-R6 BY ADV. SRI.P.VINODKUMAR** ## **OTHER PRESENT:** **SRI SUNIL NATH N.B- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.4723 OF 2021(M) 3 ## **JUDGMENT** The petitioner, who is the Chief Executive of Nandilath G Mart Private Limited, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 3 to consider Ext.P11 representation dated 30.01.2021 and Ext.P13 representation 19.02.2021 made by the Manager of Nandilath G Mart, Pathanamthitta and afford effective and meaningful police protection to the property, life of the employees and other willing workers and also for free ingress and egress to the shop and to do all such acts for the smooth functioning of the shop during the strike announced by respondents 5 and 6 and their supporters. The petitioner has also sought for a writ of mandamus commanding respondents 1 to 3 to take all effective measures by employing sufficient police personnel to prevent illegal threat and to save the life of the staff working in the petitioner's shop; a writ of mandamus commanding respondents 1 to 3 to remove all obstruction, if any, caused by respondents 5 and 6 or their supporters for the smooth conduct of business in Nandilath G Mart, Pathanamthitta. Going by the averments in the writ petition, the 5[th] respondent was working in the Pathanamthitta shop as a person nominated and appointed by W.P.(C) No.4723 OF 2021(M) 4 Innovbsource Service Private Limited, the agent of M/s.Godrej and Boyce Manufacturing company, on the strength of Ext.P5 transfer letter dated 30.12.2020. He misbehaved with the customers, which had resulted in Ext.P6 letter of discontinuation of service dated 02.01.2021 issued by the said company. The 5[th] respondent, in association with the 6[th] respondent, who is the General Secretary of Shop and Establishment Mazdoor Sangh (BMS) organised protest by preventing customers from entering into the shop, as evidenced by Ext.P7 photographs. The HR Manager of the company submitted Ext.P8 complaint before the 4[th] respondent District Labour Officer, Pathanamthitta. The 4[th] respondent initiated conciliation proceedings, as evidenced by Ext.P9 notice dated 27.01.2021. On account of strike by respondents 5 and 6 and others, the Manger of Nandilath G Mart, Pathanamthitta submitted Ext.P11 representation dated 30.01.2021 before the 3[rd] respondent Station House Officer and Ext.P13 complaint dated 19.02.2021 before the 2[nd] respondent Circle Inspector of Police, seeking police protection. Thereafter, the petitioner has moved this writ petition before this Court, seeking the aforesaid reliefs. 2. On 23.02.2021, when this writ petition came up for W.P.(C) No.4723 OF 2021(M) 5 admission, the learned Government Pleader took notice on admission for respondents 1 to 4. Urgent notice on admission by special messenger was ordered to respondents 5 and 6, returnable by 01.03.2021. The learned Government Pleader was directed to get instructions from the 3[rd] respondent. Having considered the averments in the writ petition and also the submissions made by the learned counsel on both sides, this Court granted an interim order directing the 3[rd] respondent Station House Officer to take necessary steps to ensure that there is no obstruction to free ingress and egress to the petitioner's shop on account of the protest made by respondents 5 and 6 and their supporters. 3. Along with the memo filed by the learned Government Pleader the report of the 3[rd] respondent is placed on record. 4. The 5[th] respondent has filed a counter affidavit, opposing the reliefs sought for in this writ petition, wherein it is stated that he was an employee of the petitioner's establishment since 11.07.2016 as Sales Executive, as evidenced by Ext.R5(a) certificate dated 20.05.2017. He is an active member of the union headed by the 6[th] respondent. For the past three years he has been working for the Godrej brand. Against the termination of service, the 5[th] respondent submitted a complaint before the 4[th] W.P.(C) No.4723 OF 2021(M) 6 respondent District Labour Officer, who has issued Ext.R5(b) notice dated 01.03.2021 requiring both sides to appear in the conciliation meeting scheduled on 09.03.2021. 5. The petitioner has also filed a reply affidavit. 6. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 4 and also the learned counsel for respondents 5 and 6. 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 the provisions of the Act, W.P.(C) No.4723 OF 2021(M) 7 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. 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 W.P.(C) No.4723 OF 2021(M) 8 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 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 W.P.(C) No.4723 OF 2021(M) 9 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 the report of the 3[rd] respondent Station House Officer it is stated that based on the Ext.P11 complaint both parties were summoned to the police station and the 3[rd] respondent instructed both sides to approach the Labour Officer to resolve the dispute. In the said report it is also stated that, at present, there is no law and order issues. 12. During the course of arguments, the learned counsel for respondents 5 and 6 would submit that Ext.P7 photograph produced along with the writ petition are in respect of an agitation conducted on 30.01.2021. Thereafter, there is absolutely no obstruction whatsoever to the smooth functioning of the establishment. Respondents 5 and 6 and the members of the union headed by the 6[th] respondent have absolutely no intention to take W.P.(C) No.4723 OF 2021(M) 10 law into their own hands. 13. The learned counsel for the petitioner would submit that the management shall co-operate with the conciliation proceedings now pending before the 4[th] respondent District Labour Officer. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions; (i) In case there is any obstruction to the smooth functioning of the establishment in question or any threat to law and order in the locality, in connection with any agitation/protest made by respondents 5 and 6 or the members of the union headed by the 6[th] respondent, the Manager of the establishment shall approach the 3[rd] respondent Station House Officer with a proper request for police protection. (ii) In case any such request is received, 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. (iii) The petitioner and also respondents 5 and 6 shall co-operate with the conciliation proceedings now pending before the 4[th] respondent District Labour Officer . (iv) It is made clear that this judgment will not stand in the way of the 5[th] respondent or the members of the union headed by the 6[th] respondent conducting any agitation or W.P.(C) No.4723 OF 2021(M) 11 dharna in front of the petitioner’s establishment, in a democratic manner, without causing any obstruction whatsoever to the smooth functioning of the petitioner’s establishment. ## **ANIL K. NARENDRAN** **JUDGE** MIN W.P.(C) No.4723 OF 2021(M) 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE WORK ASSIGNMENT LETTER ISSUED BY INNOVSOURCE SERVICE PVT.LTD. TO THE 5TH RESPONDENT DATED 29.7.2017.** - **EXHIBIT P2 A TRUE COPY OF THE CONTRACT RENEWAL LETTER DATED 07.12.2020.** - **EXHIBIT P3 A TRUE COPY OF THE PAY SLIP FOR THE MONTH OF AUGUST 2020.** - **EXHIBIT P4 A TRUE COPY OF WARNING LETTER ISSUED BY INNOVSOURCE SERVICE PVT.LTD. TO THE 5TH RESPONDENT DATED 11.09.2020.** - **EXHIBIT P5 A TRUE COPY OF THE TRANSFER ORDER DATED 30.12.2020 ISEUD TO THE 5TH RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF THE LETTER ISSUED BY INNOVSOURCE SERVICE PVT.LTD. TO THE 5TH RESPONDENT DATED 02.01.2021.** - **EXHIBIT P7 A TRUE COPY OF THE PHOTOGRAPH SHOWING THE NATURE OF PROTEST EXHIBITED BY THE 5TH AND 6TH RESPONDENTS.** - **EXHIBIT P8 A TRUE COPY OF THE LETTER ISSUED BY THE HR MANAGER DATED 21.01.2021.** - **EXHIBIT P9 A TRUE COPY OF THE NOTICE OF CONCILIATION MEETING DATED 27.01.2021 ISSUED BY THE DISTRICT LABOUR OFFICER, PATHANAMTHITTA.** - **EXHIBIT P10 A TRUE COPY OF THE NOTICE PUBLISHED BY THE HR MANAGER DATED 23.01.2021.** - **EXHIBIT P11 A TRUE COPY OF THE REQUEST MADE BY THE MANAGER OF PATHANAMTHITTA SHOP TO THE SHO DATED 30.01.2021.** **EXHIBIT P12 A TRUE COPY OF THE RECEIPT RECEIVED FROM THE POLICE STATION DATED 30.01.2021.** W.P.(C) No.4723 OF 2021(M) 13 **EXHIBIT P13 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE MANAGER OF PATHANAMTHITTA SHOP TO THE CI OF POLICE DATED 19.02.2021.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R5(A) A TRUE COPY OF THE CERTIFICATE ISSUED BY THE PETITIONER DATED 20.05.2017 EXHIBIT R5(B) A TRUE COPY OF THE LETTER NO. L.R/254/2021 DATED 1.3.2021 ISSUED BY THE D.L.O., PATHANAMTHITTA.**