Shijina Ayub Khan v. District Police Chief, Pathanamthitta & Others

## **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** ## **WP(C).No.1683 OF 2021(I)** ## **PETITIONER:** **SHIJINA AYUB KHAN AGED 35 YEARS W/O. AYUB KHAN, PROPRIETOR, M/S. STEELLANDS, THAZHE VETTIPURAM, RING ROAD, PATHANAMTHITTA DISTRICT - 689 645.** **BY ADVS. SRI. K.SHAJ SRI. RENJIT GEORGE SMT. UMMUL FIDA SRI. ANANDU R. SRI. JOSSY S. KATTUR SRI. JOSEPH MARY DAS SRI. ARUL K.S SRI. C.IJLAL SRI. BHARAT VIJAY P. SMT. NEERAJA GOWRI A.S SRI. ARUN CHAND SRI. MAJID MUHAMMED K. SRI. SHYJU C. T** ## **RESPONDENTS:** **1 THE DISTRICT POLICE CHIEF PATHANAMTHITTA, THAZHEVETTIPRAM, PATHANAMTHITTA DISTRICT, KERALA - 689 645. 2 THE STATION HOUSE OFFICER PATHANAMTHITTA POLICE STATION, PATHANAMTHITTA DISTRICT, KERALA - 689 645.** W.P(C).No.1683 OF 2021 2 - **3 THE DISTRICT LABOUR OFFICER OFFICE OF THE DISTRICT LABOUR OFFICER, KUTTIPLAKKAL BUILDING, MARKET ROAD, PATHANAMTHITTA - 689 645.** - **4 THE ASSISTANT LABOUR OFFICER OFFICE OF THE ASSISTANT LABOUR OFFICE, KUTTIPLAKKAL BUILDING, MARKET ROAD, PATHANAMTHITTA - 689 645.** - **5 THE KERALA HEADLOAD WORKERS (REGULATION OF EMPLOYMENT AND WELFARE) SCHEME PATHANAMTHITTA DISTRICT COMMITTEE REPRESENTED BY ITS CHAIRMAN, WELFARE FUND OFFICE, NEAR PRIVATE BUS STAND, PATHANAMTHITTA - 689 645.** - **6 TALUK HEADLOAD AND GENERAL WORKERS UNION (CITU) PATHANAMTHITTA, PATHANAMTHITTA DISTRICT - 689 645.** - **7 PATHANAMTHITTA DISTRICT HEADLOAD AND GENERAL WORKERS CONGRESS (INTUC) PATHANAMTHITTA - 689 645.** - **8 HEADLOAD GENERAL WORKERS UNION (BMS) PATHANAMTHITTA - 689 645.** - **9 PATHANAMTHITTA DISTRICT HEADLOAD AND GENERAL WORKERS COUNCIL (AITUC) PATHANAMTHITTA - 689 645.** **10 RASHID MEMBER, TALUK HEADLOAD AND GENERAL WORKERS UNION (CITU), PATHANAMTHITTA - 689 645.** - **11 SURESH MEMBER, TALUK HEADLOAD AND GENERAL WORKERS UNION (CITU), PATHANAMTHITTA - 689 645.** W.P(C).No.1683 OF 2021 3 - **12 ASHOKAN, MEMBER, HEADLOAD GENERAL WORKERS UNION (BMS), PATHANAMTHITTA - 689 645.** - **13 RAJAN, MEMBER, HEADLOAD GENERAL WORKERS UNION (BMS), PATHANAMTHITTA - 689 645.** - **14 PRASAD, MEMBER, HEADLOAD GENERAL WORKERS UNION (BMS), PATHANAMTHITTA - 689 645.** - **15 MASOOD, MEMBER, PATHANAMTHITTA DISTRICT HEADLOAD AND GENERAL WORKERS CONGRESS (INTUC), PATHANAMTHITTA - 689 645.** **R5 – SRI. K.SIJU R6, R10 - R11 – SRI. T.P.PRADEEP R6, R10 - R11 – SRI. AJAI JOHN R8 – SRI. P. VINODKUMAR** **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.1683 OF 2021 4 ## **JUDGMENT** The petitioner, who is the proprietor of M/s.Steellands engaged in the business of supply and sale of building materials has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding respondents 1 and 2 to provide adequate police protection for the loading and unloading work in her establishment, in a peaceful and smooth manner, without any obstruction from the members of respondents 6 to 9 unions, including respondents 10 to 15, or anybody under them. The petitioner has also sought for an order directing respondents 1 to 5 to take appropriate action on Ext.P2 complaint dated 15.01.2021. In the writ petition, it is alleged that, respondents 6 to 9 Unions and the headload workers under those unions, including respondents 10 to 15, are causing obstruction to the loading and unloading activities in the petitioner's establishment, by engaging the registered workers who have been issued with Ext.P5 series of identity cards under Rule 26A(3) of the Kerala Headload Workers Rules, 1981. The petitioner submitted Ext.P2 complaint dated W.P(C).No.1683 OF 2021 5 15.01.2021 before the 1[st] respondent District Police Chief and thereafter moved this writ petition before this Court seeking the aforesaid reliefs. 2. On 21.01.2021, when this writ petition came up for admission, the learned Government Pleader took notice on admission for respondents 1 to 4. The learned Standing Counsel took notice on admission for the 5[th] respondent. Urgent notice on admission was ordered to respondents 6 to 15 by speed post, returnable within three weeks. The learned Government pleader was directed to get instructions and file statement on behalf of the 2[nd] respondent. The 2[nd] respondent Station House Officer was directed to ensure that there is no threat to law and order in the locality, at the instance of respondents 6 to 15 and their supporters. 3. The learned Standing Counsel for the 5[th] respondent has filed a statement, wherein it is stated that the functional operation of the scheme under the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983, is not extended to the area in which the petitioner's establishment is situated. W.P(C).No.1683 OF 2021 6 4. The 8[th] respondent Union has filed a counter affidavit opposing the relief sought for in this writ petition. 5. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 4, the learned Standing Counsel for the 5[th] respondent, the learned counsel for respondents 6, 10 and 11 and also the learned counsel for the 8[th] respondent. 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 W.P(C).No.1683 OF 2021 7 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. 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** W.P(C).No.1683 OF 2021 8 **[(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]** . 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, W.P(C).No.1683 OF 2021 9 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. 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 W.P(C).No.1683 OF 2021 10 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 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 W.P(C).No.1683 OF 2021 11 other circumstances also which would justify grant of such direction in the facts of a particular case. 11. The learned counsel for the petitioner would submit that in the petitioner's establishment, which is not situated in a scheme covered area, the loading and unloading activities are undertaken by her own employees, who are holding Ext.P5 series of identity cards. 12. The learned Standing Counsel for the 5[th] respondent Headload Workers Welfare Board would submit that the petitioner's establishment is not situated in a scheme covered area. 13. The learned Government Pleader, on instructions, would submit that after the interim order of this Court there is no law and order issues in the locality. 14. The learned counsel for party respondents would submit that, the headload workers under the unions were being engaged in the petitioner's establishment, when there was requirement of additional headload workers, in addition to the petitioner's own workers who are holding Ext.P5 series of identity cards. W.P(C).No.1683 OF 2021 12 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) The 2nd respondent Station House Officer shall take necessary steps to ensure that there is no threat to law and order in the locality, in connection with the loading and unloading activities in the petitioner's establishment by engaging the permanent workers holding Ext.P5 series of identity cards, from the members of respondents 6 to 9 unions, including respondents 10 to 15. - (ii) In case there is any threat to law and order in the locality or any threat to the life of the petitioner and her workers, from the members of respondents 6 to 9 Unions including respondents 10 to 15, in connection with any loading and unloading activities in her establishment by engaging the permanent workers holding Ext.P5 series of identity cards, the petitioner shall move the 2[nd] respondent with a request for Police protection. - (iii) In case any such request for Police protection is made by the petitioner, the 2[nd] respondent shall take necessary action on that request, without any delay, taking note of the statutory provisions W.P(C).No.1683 OF 2021 13 referred to hereinbefore and also the law laid down in the decisions referred to supra. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** SPR W.P(C).No.1683 OF 2021 14 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF PHOTOGRAPHS SHOWING SOME OF THE RESPONDENTS AND MEMBERS OF RESPONDENT 6 TO 9 UNIONS IN THE OFFICE OF THE BUSINESS PREMISES OF THE PETITIONER.** - **EXHIBIT P2 THE TRUE COPY OF REPRESENTATION DATED 15/01/2021 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT BY EMAIL.** - **EXHIBIT P3 THE TRUE COPY OF PRINTOUT OF THE MAIL SENT BY THE PETITIONER TO THE 1ST RESPONDENT.** - **EXHIBIT P4 THE TRUE COPY OF RECEIPT ISSUED BY THE 2ND RESPONDENT TO THE HUSBAND OF THE PETITIONER.** - **EXHIBIT P5 THE TRUE COPY OF RULE 26A CARDS ISSUED TO THE WORKERS OF THE PETITIONER.** - **EXHIBIT P6 THE TRUE COPY OF ENDORSEMENT OF RECEIPT MADE BY THE 4TH RESPONDENT IN A COPY OF EXHIBIT P1 TO THE PETITIONER.** - **EXHIBIT P7 THE TRUE COPY OF ENDORSEMENT OF RECEIPT MADE BY THE 5TH RESPONDENT IN A COPY OF EXHIBIT P1 TO THE PETITIONER.** - **EXHIBIT P8 THE TRUE COPY OF PHOTOGRAPHS OF THE INTERVENTION OF THE 2ND RESPONDENT AND OTHER POLICEMEN IN THE PREMISES OF THE PETITIONER.** **RESPONDENT'S/S EXHIBITS: NIL.**