Thajudeen M. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942** ## **WP(C).No.27767 OF 2020(U)** ## **PETITIONER:** **THAJUDEEN M., AGED 57 YEARS S/O. MUHAMMED HANEEFA, GRAPES INDIA, AL-RAYAN, P.B NO. 123, CHATHANNOOR P.O, KOLLAM 691 572** **BY ADVS. SRI.RENJITH B.MARAR SMT.LAKSHMI.N.KAIMAL SHRI.MEERA M.** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY, SECRETARIAT,**| ||**THIRUVANANTHAPURAM 695 001**| |**2**|**DISTRICT POLICE CHIEF,**| ||**OFFICE OF DISTRICT POLICE CHIEF,**| ||**MUNDAKKAL, KOLLAM 691 001**| |**3**|**ASST. COMMISSIONER OF POLICE,**| ||**OFFICE OF THE ACP, CHATHANNOOR,**| ||**KOLLAM 691 572**| |**4**|**STATION HOUSE OFFICER,**| ||**KOTTIYAM POLICE STATION, KOLLAM 691 571**| |**5**|**THE SECRETARY,**| ||**INTUC, OTTAPLAMOOD, KOLLAM 691 001**| |**6**|**THE SECRETARY,**| ||**CITU, OTTAPLAMOOD, KOLLAM 691 001**| |**7**|**THE SECRETARY,**| ||**BMS, OTTAPLAMOOD, KOLLAM 691 001**| WP(C).No.27767 OF 2020(U) 2 ## **ADDL R8 IMPLEADED** **ADDL KERALA HEADLOAD WORKERS WELFAR BOARD, R8 REPRESENTED BY ITS CHAIRMAN, DISTRICT COMMITTEE OFFICE, II FLOOR, USHUS BLDG., NEAR STONE BRIDGE, CHAMAKKADA, KOLLAM - 691 001.** **(ADDL.R8 IS IMPLEADED AS PER ORDER DATED 19/1/2021 IN I.A.1/2021 IN WP(C)27767/2020.)** **R1-R4 BY GOVERNMENT PLEADER SRI SUNIL NATH N.B R8 BY ADV. SRI.K.SIJU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.27767 OF 2020(U) 3 ## **JUDGMENT** The petitioner, who is the proprietor of M/s.Grapes India, a firm, which is engaged in the business of export of spices, in Door No.3/1797, Chathannoor, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 2 to 4 to grant adequate protection to the life and property of the petitioner and his employees for conducting his business. In the writ petition it is alleged that the headload workers, who are members of respondents 5 to 7 unions, are causing obstruction to the loading and unloading activities in the petitioner's establishment. 2. On 15.12.2020, when this writ petition came up for admission, notice before admission was ordered to the respondents. The learned Government Pleader took notice for respondents 1 to 4. Urgent notice by speed post was ordered tor respondents 5 to 7. 3. On 03.02.2021, this Court passed an interim order, which reads thus: “Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, there will be an interim order directing the 4[th] WP(C).No.27767 OF 2020(U) 4 respondent Station House Officer to ensure that there is no threat to law and order in the locality, at the instance of respondents 5 and 6 or their supporters. If there is any physical obstruction to the loading and unloading activities undertaken in the petitioner's establishment, at the instance of respondents 5 and 6, the petitioner shall approach the 4[th] respondent with a proper request, in which event the said respondent shall render necessary police protection.” 4. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 4 and also the learned Standing Counsel for the additional 8[th] respondent. Despite service of notice, none appears for respondents 5 to 7. 5. 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 WP(C).No.27767 OF 2020(U) 5 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. 6. 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." ## 7. In **Manohar Lal Sharma v. Principal Secretary** WP(C).No.27767 OF 2020(U) 6 **[(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]** . 8. 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 WP(C).No.27767 OF 2020(U) 7 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. 9. 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 WP(C).No.27767 OF 2020(U) 8 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. 10. The learned Government Pleader would submit that at present there is no law and order issues in the locality, in connection with loading and unloading activities in the petitioner's establishment. WP(C).No.27767 OF 2020(U) 9 11. The learned Standing Counsel for the additional 8[th] respondent would submit that as already pointed out before this Court, the area in question is not a scheme covered area. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by permitting the petitioner to move the 4[th] respondent Station House Officer seeking Police protection, in case any obstruction is caused to the loading and unloading activities undertaken in the petitioner's establishment by the headload workers, who are members of respondents 5 to 7 unions. In case any such request for Police protection is made by the petitioner, the 4[th] 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. ## **Sd/-** ## **ANIL K.NARENDRAN** JV ## **JUDGE** WP(C).No.27767 OF 2020(U) 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CEERTIFICATE OF IMPORTER-EXPORTER CODE OF THE PETITIONER'S FIRM DATED 16-01-2015** **EXHIBIT P2** **TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.**