Sajeev v. Sub Inspector of Police, Malampuzha Police Station, Palakkad and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942** ## **WP(C).No.15354 OF 2020(T)** ## **PETITIONER:** **SAJEEV AGED 35 YEARS** **S/O. KESAVAN, THODUKATTIL HOUSE, PALAMPATTA, POTTASSERI, KANHIRAPUZHA, PROPRIETOR, SREEKRISHNA INTERLOCKING TILES, 12/384,CHERAD, MALAMPUZHA, PALAKKAD DISTRICT-678 651** **BY ADVS.** **SRI.JACOB SEBASTIAN SRI.K.V.WINSTON** ## **RESPONDENTS:** - **1 THE SUB INSPECTOR OF POLICE MALAMPUZHA POLICE STATION, PALAKKAD,PIN-678 651** - **2 THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD, AM COMPLEX, TB ROAD, PALAKKAD,PIN-678 014, REP BY ITS DISTRICT OFFICER** - **3 CENTRE FOR INDIAN TRADE UNIONS(CITU), HEAD LOAD WORKERS UNIT, CHERAD, MANTHAKKAD P.O., PALAKKAD DISTRICT,PIN-678 651** - **4 BHARATIYA MAZDOOR SANGH (BMS) HEAD LOAD WORKERS UNIT,CHERAD, MANTHAKKAD P.O., PALAKKAD DISTRICT,PIN-678 651, REPRESENTED BY ITS PRESIDENT** - **5 INDIAN NATIONAL TRADE UNION OF CONGRESS (I.N.T.U.C) CHERAD, MANTHAKKAD P.O., PALAKKAD DISTRICT, PIN-678 651,REPRESENTED BY ITS PRESIDENT** **R1 BY SRI P.P.THAJUDHEEN, SR. GOVERNMENT PLEADER R2 BY ADV. SRI.THOMAS ABRAHAM** **R3-R5 BY ADV. SRI.BINOY VASUDEVAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.15354 OF 2020(T)** 2 ## **JUDGMENT** Going by the averments in the writ petition, the petitioner has started a cement hollow blocks manufacturing unit, which is a small scale industrial unit, on the strength of Ext.P1 trade licence dated 01.04.2020 issued by the Secretary of Malampuzha Grama Panchayath. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent to afford effective police protection to his establishment, his workers and for the vehicles used for transporting goods. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent to ensure that members of respondents 3 to 5 trade unions do not interfere in any manner, with the loading and unloading activity in his establishment or do not block the vehicles coming to and going out of the establishment. 2. In the writ petition, it is alleged that the headload workers belonging to respondents 3 to 5 unions are obstructing the incidental loading and unloading activities in the petitioner's establishment. Since the area in question, i.e., Cherad in Malampuzha, where the petitioner's establishment is located, is not covered by the Kerala Headload Workers (Regulation of **WP(C).No.15354 OF 2020(T)** 3 Employment and Welfare) Scheme, 1983, the petitioner can engage his own workers for the incidental loading and unloading activities, and as such, the members of headload workers, who are members of respondents 3 to 5 unions, have no legal right to cause any obstruction. Alleging that, on 09.07.2020 and 10.07.2020 the workers of respondents 3 to 5 unions caused obstruction and threatened the workers engaged by the petitioners, he filed Ext.P2 complaint dated 22.07.2020 before the 1[st] respondent Station House Officer and thereafter, moved this writ petition seeking the aforesaid reliefs. 3. On 28.07.2020, when this writ petition came up for admission, the learned Government Pleader took notice for the 1[st] respondent and the learned Standing Counsel took notice for the 2[nd] respondent. The petitioner was directed to take out notice to respondents 3 to 5 by speed post. Learned Standing Counsel for the 2[nd] respondent submitted that the establishment is not situated in an area covered by the scheme. Having regard to the facts and circumstances, this Court passed an interim order, directing the 1[st] respondent to ensure that law and order is maintained and if sought for, to grant effective protection to the **WP(C).No.15354 OF 2020(T)** 4 petitioner to carry on with the loading and unloading work in the establishment without any incursions from respondents 3 to 5. It was also made clear that respondents 3 to 5 shall not obstruct the ingress and egress to the establishment of the petitioner. The said interim order, which was extended from time to time, is still in force. 4. A statement has been filed by the 1[st] respondent, wherein it is stated that the petitioner has not started functioning of the hollow brick unit due to the lack of electricity connection. The leaders of respondents 3 to 5 unions were summoned to the police station and an enquiry was conducted with regard to the allegations levelled against them. They informed the 1[st] respondent that they are not having any idea with regard to the establishment of the petitioner or its functioning and they have not raised any dispute in connection with the loading and unloading activities, as alleged by the petitioner. 5. Respondents 3 to 5 have filed counter affidavit contending that there was no occasion for any obstruction by the said respondents, as alleged in the writ petition, and the writ petition is purely experimental in nature, which is liable to be **WP(C).No.15354 OF 2020(T)** 5 dismissed with exemplary cost. 6. The petitioner has filed a reply affidavit dated 07.10.2020 to the statement filed on behalf of the 1[st] respondent and also to the counter affidavit filed by respondents 3 to 5. Along with the statement, the petitioner has placed on record Ext.P3 registered lease deed dated 10.07.2020; Ext.P4 letter dated 13.02.2019 issued from the District Industries Centre, Palakkad to the lending bank; and Ext.P5 copy of the UDYAM Registration Certificate relating to the unit in question, issued from the District Industries Centre, Palakkad. 7. Heard the learned counsel for the petitioner, learned Senior Government Pleader for the 1[st] respondent, learned Standing Counsel for the 2[nd] respondent also the learned counsel for respondents 3 to 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, **WP(C).No.15354 OF 2020(T)** 6 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. 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 **WP(C).No.15354 OF 2020(T)** 7 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 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 **WP(C).No.15354 OF 2020(T)** 8 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. 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 **WP(C).No.15354 OF 2020(T)** 9 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 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. **WP(C).No.15354 OF 2020(T)** 10 13. In the writ petition it is alleged that there was obstruction from the side of respondents 3 to 5 in the loading and unloading activities in the petitioner's hollow blocks unit, though the said unit is not situated in a scheme covered area. The fact that the area in question is not a scheme covered area, is not in dispute. If that be so, the headload workers of respondents 3 to 5 unions cannot raise any objection in the petitioner engaging his own workers for loading and unloading activities. 14. The petitioner is conducting cement hollow blocks manufacturing unit, on the strength of Ext.P1 trade licence issued by Malampuzha Grama Panchayath. The petitioner can run such a unit only on the strength of consent to operate issued by the concerned Environmental Engineer of the Kerala State Pollution Control Board. On a query made by this Court, the learned counsel for the petitioner would submit that the petitioner shall not operate the unit in question without a consent to operate issued by the Kerala State Pollution Control Board. The said submission is recorded. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the **WP(C).No.15354 OF 2020(T)** 11 following directions: In case the petitioner has obtained consent to operate from the Kerala State Pollution Control Board, and there is any obstruction to the loading and unloading activities in that unit by the members of respondents 3 to 5 unions, the petitioner shall approach the 1[st] respondent Station House Officer, Malampuzha seeking adequate police protection. In case any such request for Police protection is made by the petitioner, the 1[st] respondent shall take necessary action on that request, without any delay, taking note of the law laid down in the decisions referred to supra. The petitioner shall produce the consent to operate issued by the Kerala State Pollution Control Board before the Station House Officer, Malampuzha Police Station, within one week from the date of receipt of a certified copy of this judgment. ## **Sd/-** ## **ANIL K.NARENDRAN** JV **JUDGE** **WP(C).No.15354 OF 2020(T)** 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE TRADE LICENSE DATED 1 APRIL 2020 ISSUED BY THE MALAMPUZHA PANCHAYAT** **EXHIBIT P2 A TRUE COPY OF THE COMPLAINT ALONG WITH THE RECEIPT DATED 22.07.2020** **EXHIBIT P3 A TRUE COPY OF THE REGISTERED LEASE DEED DATED JULY 10, 2019, REGISTERED AS NO.1468/2019 OF THE SRO, OLAVAKKODE.** **EXHIBIT P4 A TRUE COPY OF THE LETTER DATED FEBRUARY 13, 2019 ISSUED FROM THE DISTRICT INDUSTRIES CENTRE, PALAKKAD TO THE LENDING BANK.** **EXHIBIT P5 A TRUE COPY OF THE UDYAM REGISTRATION CERTIFICATE RELATING TO THE UNIT ISSUED FROM THE DISTRICT INDUSTRIES CENTRE, PALAKKAD.**