Shihabuudeen S. v. The State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943** ## **WP(C).No.6989 OF 2021(W)** ## **PETITIONER:** **SHIHABUDEEN S. AGED 42 YEARS S/O SUBAIR KUTTY, RESIDING AT- KIZHAKKEDATH KIZHAKKATHIL, CHERAVALLI, K.P. ROAD, FIRST MILE, KAYAMKULAM690502.** **BY ADV. SRI.S.SUJIN** ## **RESPONDENTS:** |**1**|**SOMARAJAN**| |---|---| ||**CONVENOR, CITU, MENATHERI,**| ||**RESIDING AT VALALIL,**| ||**PULLIKKANAKKU P.O, KAYAMKULAM, ALAPPUZHA**| ||**DISTRICT, PIN-690502.**| |**2**|**SUMESH,**| ||**SECRETARY,**| ||**RESIDING AT MANGALATHU THARAYIL,**| ||**PULLIKKANAKKU P.O, KAYAMKULAM, ALAPPUZHA,**| ||**PIN-690502.**| |**3**|**CIRCLE INSPECTOR OF POLICE,**| ||**KAYAMKULAM POLICE STATION,**| ||**ALAPPUZHA, PIN-690502.**| |**4**|**THE STATE OF KERALA**| ||**REPRESENTED BY SECRETARY TO THE GOVERNMENT,**| ||**HOME DEPARTMENT, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM,**| ||**PIN-695001.**| -2- WP(C).No.6989 OF 2021(W) **R1-2 BY ADV. SRI.V.P.PRASAD R3-4 BY GOVERNMENT PLEADER SRI JESTIN MATHEW** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- WP(C).No.6989 OF 2021(W) ## **JUDGMENT** The petitioner, who is running a shop by name 'National Ply Mart' at First Mile, Kayamkulam, which is dealing with plywood, glass and other household fragile items, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent Circle Inspector of Police to grant effective police protection to the petitioner and his workers and also to his shop, from respondents 1 and 2 and their men. In the writ petition it is stated that, the petitioner has his own registered employees covered by Exts.P2 to P5 identity cards issued under Rule 26A of the Kerala Headload Workers Rules, 1981 for loading and unloading activities. Despite the said fact, the members of the headload workers union, headed by respondents 1 and 2, are causing obstruction to the loading and unloading activities in his establishment. The petitioner submitted Ext.P1 complaint dated 14.03.2021 before the Sub Inspector of Police, Kayamkulam and thereafter, moved this writ petition before this Court seeking the aforesaid relief. 2. On 18.03.2021, when this writ petition came up for admission, this Court issued urgent notice on admission by -4- WP(C).No.6989 OF 2021(W) special messenger to respondents 1 and 2, returnable by 24.03.2021. The learned Government Pleader took notice on admission for respondents 3 and 4. The learned Government Pleader was directed to get instructions. Having considered the submissions made by the learned Senior Counsel for the petitioner and also the learned Government Pleader, this Court granted an interim order directing the 3[rd] respondent Circle Inspector of Police to take necessary steps to ensure that there is no threat to law and order in the locality, in connection with any loading and unloading activities in the petitioner's establishment, at the instance of respondents 1 and 2 or the headload workers under them. 3. Respondents 1 and 2 have filed a counter affidavit, today, as Bench mark, wherein it is stated that in addition to the headload workers who are holding Exts.P2 to P5 identity cards, the petitioner is engaging migrant workers for loading and unloading activities. If the petitioner is in requirement of headload workers in addition to his own workers holding Exts.P2 to P5 identity cards, he has to engage the pool workers including the members of the unions headed by respondents 1 and 2. -5- WP(C).No.6989 OF 2021(W) 4. The statement filed by the learned Government Pleader on behalf of the 3[rd] respondent Station House Officer is placed on record. 5. Heard the learned counsel for the petitioner, the learned counsel for respondents 1 and 2 and also the learned Government Pleader for respondents 3 and 4. 6. 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 -6- ## WP(C).No.6989 OF 2021(W) 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. 7. 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, 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." 8. 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.6989 OF 2021(W) 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]** . 9. 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 -8- ## WP(C).No.6989 OF 2021(W) 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. 10. 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 -9- WP(C).No.6989 OF 2021(W) 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. 11. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, this Court finds that the area in which the petitioner's establishment is situated is a scheme covered -10- ## WP(C).No.6989 OF 2021(W) area. In such circumstances, for loading and unloading activities, the petitioner has to engage his own workers having registration under Rule 26A of the Kerala Headload Workers Rules, 1981 or the pool workers in that locality. The specific stand taken by the petitioner in this writ petition is that the loading and unloading activities in his establishment is being done by the registered workers covered by Exts.P2 to P5 identity cards. 12. One of the contentions raised by respondents 1 and 2 is that, in addition to the registered headload workers holding Exts.P2 to P5 identity cards, the petitioner is engaging migrant labourers. If there is any such requirement for additional workers, the petitioner has to engage the pool workers including those who are members of the unions headed by respondents 1 and 2. 13. The learned Government Pleader would submit that at present, there is no law and order issues in the locality. 14. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions; (i) The 3[rd] respondent shall take necessary steps to -11- ## WP(C).No.6989 OF 2021(W) ensure that there is no threat to law and order in the locality, at the instance of respondents 1 and 2 or their members, in connection with the loading and unloading activities in the petitioner's establishment by engaging registered workers holding Exts.P2 to P5 identity cards. (ii) In case there is any threat to the life of the petitioner or the registered workers engaged by him, from the side of respondents 1 and 2 or their members, the petitioner 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. (iv) If there is any requirement for workers in addition to the registered workers, the petitioner has to engage the headload workers from the pool, including those under the unions headed by respondents 1 and 2. No order as to costs. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/3/4 -12- WP(C).No.6989 OF 2021(W) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE COMPLAINT DATED 14.03.2021 SUBMITTED BY THE PETITIONER FOR POLICE PROTECTION.** **EXHIBIT P2 TRUE COPY OF THE IDENTITY CARD OF THE PETITIONER'S WORKER AJITH KUMAR.** **EXHIBIT P3** **TRUE COPY OF THE IDENTITY CARD OF THE PETITIONER'S WORKER RANJITH SAKKUM.** **EXHIBIT P4** **TRUE COPY OF THE IDENTITY CARD OF THE PETITIONER'S WORKER MANIK KURKKITH.** **EXHIBIT P5** **TRUE COPY OF THE IDENTITY CARD OF THE PETITIONER'S WORKER TAJUDEEN.** **EXHIBIT P6** **TRUE COPY OF THE EXTRACT OF THE EMPLOYMENT AND WAGES REGISTER FOR THE PERIOD 29/06/2020 TO 04.07.2020 ALONGWITH THE RECEIPT OF WAGES GIVEN BY THE PETITIONERS 4 PERMANENT WORKERS.** **EXHIBIT P7** **TRUE COPY OF THE EXTRACT OF THE EMPLOYMENT AND WAGES REGISTER FOR THE PERIOD 08/03/2021 TO 13.03.2021 ALONGWITH THE RECEIPT OF WAGES GIVEN BY THE PETITIONERS 4 PERMANENT WORKERS.**