Kallens Granites And Tiles vs. State Of Kerala - Kerala High Court, 31 March 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNE AY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943 WP(C).No.5646 OF 2021(E) PETITIONER : M/S KALLENS GRANITES & TILES DOOR NO. VI, 548, ALANGADU P.O, ERNAKULAM DISTRICT, PIN - 683511, REPRESENTED BY ITS MANAGING PARTNER, FINIX VARGHESE, AGED 45 YEARS, S/O. VARGHESE, PUTHUVA HOUSE, MALAYIDAMTHURUTHU. BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO THE DEPARTMENT OF HOME AFFAIRS, THIRUVANANTHAPURAM, PIN - 695001. * 2 [CIRCLE INSPECTOR OF POLICE, KOTTAPURAM, ERNAKULAM, PIN – 683511.] THE ADDRESS OF THE 2ND RESPONDENT IS CORRECTED AS C.I.OF POLICE, ALUVA WEST POLICE STATION, ALUVA, PIN - 683511, AS PER ORDER DATED 31.03.2021 IN IA 2/2021 IN WP(C) NO. 5646/2021. 3 CITU MALIKAMPEEDIKA UNIT, REPRESENTED BY ITS CONVENER, MALIKAM PEEDIKA, ALUVA - PARUR ROAD, MALIKAMPEEDIKA, ERNAKULAM, PIN - 683511. -2- WP(C).No.5646 OF 2021(E) *ADDL. R4 KERALA HEAD LOAD WORKERS WELFARE BOARD S.R.M.ROAD, ERNAKULAM PIN-682018, REPRESENTED BY ITS CHIEF EXECUTIVE. ADDL.R4 IS IMPLEADED AS PER ORDER DATED 05.03.2021 IN IA 1/2021 IN WPC NO.5646/2021. R1 & 2 BY SRI JESTIN MATHEW- GOVERNMENT PLEADER R4 BY SRI.S.KRISHNA MOORTHY, SC, KHWWB 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.5646 OF 2021(E) JUDGMENT The petitioner, which is a partnership firm engaged in the trading of marble, granite and ceramic tiles, etc, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2nd respondent Circle Inspector of Police to afford adequate police protection to the petitioner and its employees for conducting its activities of loading and unloading of marbles, granite pieces and ceramic tiles, by using mechanical devices, in the premises of the petitioner, from being objected, obstructed or interdicted by the members of the 3rd respondent union. Going by the averments in the writ petition, the petitioner is doing loading and unloading activities in the establishment by mechanical devices, namely, fork lift, as evident from Ext.P3 series of photographs. The grievance of the petitioner is threat/ obstruction caused by the headload workers, who are members of the 3rd respondent Union, in the loading and unloading activities undertaken in its establishment with the help of mechanical devices. The petitioner submitted Ext.P4 complaint dated 23.02.2021 before the 2nd respondent and thereafter, moved this writ petition before this Court seeking

-4- WP(C).No.5646 OF 2021(E) the aforesaid relief.

On 04.03.2021, when this writ petition came up for admission, the petitioner was directed to file an application to implead the Headload Workers Welfare Board as an additional respondent, after serving copy to the learned Standing Counsel.

On 05.03.2021, this Court allowed I.A.No.1 of 2021 filed by the petitioner, whereby the Kerala Headload Workers Welfare Board was impleaded as the additional 4th respondent. The learned Standing Counsel for the additional 4th respondent submitted that the area, in which the petitioner's establishment is situated is a Scheme covered area. The learned Government Pleader took notice on admission for respondents 1 and 2 and the learned Standing Counsel took notice on admission for the additional 4th respondent. This Court issued urgent notice on admission by special messenger to the 3rd respondent, returnable by 09.03.2021. The learned Government Pleader was directed to get instructions.

Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 and

-5- WP(C).No.5646 OF 2021(E) 2 and also the learned counsel for the additional 4th respondent. Despite service of notice, none appears for the 3rd respondent.

The issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for police protection, from any threat being caused by the headload workers, who are members of the 3rd respondent union, to the loading and unloading activities in its establishment by engaging fork lift and other mechanical devices.

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

-6- WP(C).No.5646 OF 2021(E) 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.

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- WP(C).No.5646 OF 2021(E)

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].

Section 9A of the Kerala Headload Workers Act, 1978 deals with engaging the services of headload workers. As per sub-section (1) of Section 9A, subject to the provisions of this Act, an employer shall engage a headload worker registered under the Act in connection with the work of his establishment. As per the proviso to sub-section (1) of Section 9A, in the case of works which require assistance of skilled persons and which are to be done with due diligence or require the aid of machinery, such works may be done by engaging the persons having such skill or by the machinery, as the case may be. As per sub-section (2) of Section 9A,

-8- WP(C).No.5646 OF 2021(E) every headload worker shall be entitled to wages as prescribed by the Government under the provisions of this Act only if their services have been engaged by the employer or the owner of an establishment.

10.

In Akbar P. v. Sub Inspector of Police, Nilambur Police Station and others [2015 (2) KHC 523], a Division Bench of this Court held that when an establishment is situated in a scheme covered area the loading and unloading work can be undertaken only through registered workers. If loading and unloading work is done by mechanised devices, no one can obstruct the same. On the facts of the said case, the Division Bench held that if the party respondents have a case that while doing loading and unloading work by mechanised devices, the petitioner is engaging any other person for loading and unloading, they have to approach the concerned Labour Officer by claiming work. On the other hand, if the entire work is being done by mechanised devices, the party respondents and their men cannot demand loading and unloading work nor they can obstruct the loading work being done by the petitioner.

-9- WP(C).No.5646 OF 2021(E) Paragraph 5 and also the last paragraph of that decision read thus; “5. Having regard to the submissions, it is not in dispute that the area in question is a Scheme covered area under the Headload Workers Act. The petitioner can do loading and unloading work only through the registered workers. The petitioner has a case that presently he is doing his work through cranes and by employing his own workers. It is needless to say that if loading and unloading work is being done by mechanised devices, no one cannot obstruct the same. If the party respondents have a case that while doing so, the petitioner is engaging any other person for loading and unloading, they have to approach the concerned Labour Officer by claiming work. If the entire work is being done by mechanised devices, the party respondents and their men cannot demand loading and unloading work nor can they obstruct the loading work being done by the petitioner. Under such circumstances, reserving the right of the party respondents to approach the District Labour Officer, the writ petition is disposed of as under; The first respondent shall ensure that no law and order situation arises while the work of loading and unloading work is done using mechanised devices.

-10- WP(C).No.5646 OF 2021(E) If any manual labour is required for loading work the petitioner shall engage only registered workers.” Having considered the averments in the writ petition 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 shall take necessary steps to ensure that there is no threat to law and order in the locality, at the instance of the 3rd respondent or its members, in connection with the loading and unloading activities in the petitioner's establishment using fork lift or other mechanical devices. (ii) In case there is any threat to the life of the petitioner or the workers engaged by them, from the side of the 3rd respondent or its members, the petitioner shall move the 2nd 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 2nd 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) In case there is any requirement for manual labourers for loading and unloading activities, the

-11- WP(C).No.5646 OF 2021(E) petitioner has to engage the pool workers, in case he is not having registered headload workers having identity cards issued under Rule 26A of the Kerala Headload Workers Rules, 1981. ANIL K.NARENDRAN, JUDGE AV/3/4

-12- WP(C).No.5646 OF 2021(E) APPENDIX RESPONDENT'S/S EXHIBITS: EXHIBIT R1OF THE LICENSE ISSUED BY THE ALANGADU GRAMA PANCHAYATH DATED 01.04.2020. EXHIBIT R2OF THE GST REGISTRATION CERTIFICATE ISSUED TO THE PETITIONER DATED 22.01.2019. EXHIBIT R3OF THE PHOTOGRAPHS SHOWING THE MACHINERIS. EXHIBIT R4OF COMPLAINT SUBMITTED TO THE 2ND RESPONDENT DATED 23.02.2021 ALONG WITH RECEIPT. EXHIBIT R5OF THE JUDGMENT REPORTED IN 2015(2) KHC 523.