Soya Muhammed vs. Station House Officer - Kerala High Court, 18 March 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THUR AY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942 WP(C).No.4633 OF 2021(D) PETITIONER: SOYA MUHAMMED AGED 50 YEARS W/O.P.S. MUHAMMED, PROPRIETOR, M/S. PAZHAMPILLY BUILDING SOLUTIONS, ADIVAD, IMANGALAM P.O. PALLARIMANGALAM, KOTHAMANGALAM , ERNAKULAM DISTRICT. BY ADVS. SRI.G.HARIHARAN SRI.PRAVEEN.H. SMT.K.S.SMITHA SRI.V.R.SANJEEV KUMAR RESPONDENTS: 1 STATION HOUSE OFFICER POTHANIKKAD POLICE STATION, POTHANIKKADU, ERNAKULAM DISTRICT 686 671. 2 DISTRICT POLICE CHIEF, ERNAKULAM DISTRICT AT ALUVA 683 101. 3 ASSISTANT LABOUR OFFICER, REVENUE TOWER KOTHAMANGALAM, ERNAKULAM DISTRICT 686 691. 4 KERALA HEAD LOAD WORKERS WELFARE BOARD, SRM ROAD, ERNAKULAM NORTH, ERNAKULAM , KERALA 682 018, REPRESENTED BY ITS CHIEF EXECUTIVE.

-2- WP(C).No.4633 OF 2021(D) 5 HEAD LOAD WORKERS UNION (CITU), PALLARIMANGALAM, UNIT, PALLARIMANGALAM, KOTHAMANGALAM, ERNAKULAM DISTRICT 686 671, REPRESENTED BY ITS SECRETARY. 6 HEAD LOAD WORKERS UNION (INTUC), PALLARIMANGALAM, UNIT, PALLARIMANGALAM, KOTHAMANGALAM, ERNAKULAM DISTRICT 686 671, REPRESENTED BY ITS SECRETARY. 7 HEAD LOAD WORKERS UNION (STU), PALLARIMANGALAM, UNIT, PALLARIMANGALAM, KOTHAMANGALAM, ERNAKULAM DISTRICT 686 671, REPRESENTED BY ITS SECRETARY. 8 MR. ASHRAF, HEAD LOAD WORKER , RESIDING AT AIYKARAKUNNEL HOUSE, ADIVAD, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 671. 9 MR. SHAHMON, HEAD LOAD WORKER , RESIDING AT OALIKYAL HOUSE, ADIVAD, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 671. 10 MR. BASHEER, HEAD LOAD WORKER, RESIDING AT VETTIKATTIL HOUSE, MADIYOOR, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 693. 11 MR. ALI, HEAD LOAD WORKER, RESIDING AT VETTIKATTIL HOUSE, MADIYOOR, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 693. 12 MR. ASHRAF, HEAD LOAD WORKER , RESIDING AT KACHERITHZHATHU HOUSE, KOOVALOOR, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 671. -3- WP(C).No.4633 OF 2021(D) 13 MR. ANAS, HEAD LOAD WORKER, RESIDING AT VADAKEKARAYIL HOUSE, PULIKUNNEPADI, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 671. 14 MR. KUNJUMON, HEAD LOAD WORKER, RESIDING AT KODUTHAPILLI HOUSE, ADIVAD, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 671. 15 MR. YOUSUF, HEAD LOAD WORKER , RESIDING AT KODUTHAPILLI HOUSE, ADIVAD,PULIKUNNEPADI, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 671. 16 MR. BASHEER, HEAD LOAD WORKER, RESIDING AT MALIKKYAL HOUSE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 691. 17 MR.SHAFI, HEAD LOAD WORKER, RESIDING AT PAZHUNGATTIL HOUSE, PALLARIMANGALAM, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 671. 18 MR. ALI, HEAD LOAD WORKER, RESIDING AT CHELIKANDATHIL HOUSE, PULIKUNNAPADI, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 671. 19 MR. KUNJAN, HEAD LOAD WORKER, RESIDING AT CHELIKANDATHIL HOUSE, PULIKUNNAPADI, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 671. -4- WP(C).No.4633 OF 2021(D) 20 MR. SASI, HEAD LOAD WORKER , ADIVAD, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 671. R1-3 BY GOVERNMENT PLEADER SRI SUNIL NATH N.B R4 BY SRI.S.KRISHNA MOORTHY, SC, KHWWB R5-20 BY ADV. SRI.SALIM V.S. R5-20 BY ADV. SRI.M.M.ANSAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

-5- WP(C).No.4633 OF 2021(D) JUDGMENT The petitioner, who is conducting business of building materials under the name and style 'M/s.Pazhampilly Building Solutions' in Adivadi, 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 proper and adequate police protection to the petitioner, her sons and workers in connection with the business carried out in her establishment, covered by Ext.P1 GST registration certificate dated 17.07.2018. The petitioner has also sought for a writ of mandamus commanding respondents 1 to 3 to ensure compliance of the regulations contained in Ext.P2 agreement 01.01.2021 executed between Kerala Vyapari Vyavasayi Ekopana Samithi and various headload workers unions. In the writ petition, it is alleged that respondents 5 to 7 Unions, especially respondents 8 to 20 workers, are demanding higher rate of wages and threatening to cause physical injury to the petitioner and her sons. The petitioner filed Ext.P3 complaint dated 30.01.2021 before the 1st respondent Station House

-6- WP(C).No.4633 OF 2021(D) Officer, which was acknowledged by Ext.P4 receipt, and also Ext.P5 complaint dated 01.02.2021 before the 1st respondent, which was acknowledged as evidenced by Ext.P6. Thereafter, the petitioner has moved this writ petition before this Court seeking the aforesaid reliefs.

On 23.02.2021, when this writ petition came up for admission, the learned Government Pleader took notice on admission for respondents 1 to 3. The learned Standing Counsel took notice on admission for the 4th respondent. This Court issued urgent notice on admission by special messenger to respondents 5 to 20, returnable by 03.03.2021. The learned Government Pleader was directed to get instructions.

On 03.03.2021, the learned Standing Counsel for the 4th respondent Headload Workers Welfare Board submitted that the area in which the petitioner's establishment is situated is not a scheme covered area. The learned Government Pleader sought time to file statement and also the learned counsel for the party respondents sought time to file counter affidavit.

-7- WP(C).No.4633 OF 2021(D)

The 6th respondent has filed a counter affidavit, producing therewith Ext.R6(a) agreement dated 01.02.2021 executed between the Vyapari Vayavasayi Ekopana Samithi and respondents 5, 6 and 7. The learned counsel for the 6th respondent would point out that the petitioner is also a member of the said Samithi.

The 1st respondent Station House Officer has filed a statement. Paragraphs 5 to 7 of that statement read thus; “5. The allegation of the petitioner is that, the members of the respondents 5 to 7 unions demanded more wages and threatened her and her son. In this connection two petitions were received in this station which was registered in IAPS Nos.17158/21 dated 30.01.21 and No.17726/21 dated 01.2.21 respectively.

Enquiry has been conducted and summoned the parties to the station and as the matter was not settled, the parties were directed to settle the matter through Labour Office, Kothamangalam.

As a matter of fact, there is no crime case registered in this regard and there is no law and order situation prevailing now for granting police protection.”

Heard the learned counsel for the petitioner, the

-8- WP(C).No.4633 OF 2021(D) learned Government Pleader appearing for respondents 1 to 3, the learned Standing Counsel appearing for the 4th respondent and also the learned counsel for respondents 5 and 20. 7. 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

-9- WP(C).No.4633 OF 2021(D) 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."

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

-10- WP(C).No.4633 OF 2021(D) 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].

10.

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

-11- WP(C).No.4633 OF 2021(D) 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.

11.

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

-12- WP(C).No.4633 OF 2021(D) 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

-13- WP(C).No.4633 OF 2021(D) 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.

12.

As already noticed hereinbefore, the area in which the petitioner's establishment is situated is not a scheme covered area. If that be so, the petitioner has every right to engage his own workers for loading and unloading activities.

13.

The learned counsel for respondents 5 to 20, after referring to the counter affidavit filed by the 6th respondent, would submit that as per Ext.R6(a) agreement with the Vyapari Vyavasayi Ekopana Samithi, in which the petitioner is also a member, the headload workers are entitled for payment of higher wages for loading and unloading of goods from large container lorries. The petitioner being a member of that Samithi has to honour that agreement. The learned counsel would also submit that the workers of respondents 5 to 7 unions have absolutely no intention to take law into their own hands and any agitation or protest by them will be in a democratic manner, without causing any obstruction

-14- WP(C).No.4633 OF 2021(D) whatsoever to the smooth functioning of the petitioner's establishment.

14.

Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, this Court finds that since the area in question is not a scheme covered area, the petitioner has every right to engage her own workers for loading and unloading activities. In such circumstances, this writ petition is disposed of with the following directions; (i) The 1st respondent 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

activity

in the petitioner's establishment, at the instance of respondents 5 to 7 or their members, including respondents 8 to 20. (ii) In case there is any threat to the life of the petitioner, her family members or the workers engaged by her, from the side of respondents 5 to 7 or their members including respondents 8 to 20, the petitioner shall move the 1st respondent

-15- WP(C).No.4633 OF 2021(D) Station House Officer with a request for Police protection. (iii) In case any such request for Police protection is made by the petitioner, the 1st 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. It is made clear that this judgment will not stand in the way of any protest or agitation made by the members of respondents 5 to 7 including respondents 8 to 20 in a democratic manner, without causing any obstruction to the smooth functioning of the petitioner's establishment. The petitioner and the party respondents shall co- operate with the conciliation proceedings, if any, pending before the 3rd respondent Assistant Labour Officer. No order as to costs. ANIL K.NARENDRAN, JUDGE AV/18/3

-16- WP(C).No.4633 OF 2021(D) APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE GST REGISTRATION CERTIFICATE ISSUED IN THE NAME OF THE PETITIONER BY COMPETENT AUTHORITY ON 17.07.2018. EXHIBIT P2OF THE SCHEDULE OF RATES ENTERED BY THE VARIOUS UNION 01.01.2021 PRESCRIBING THE CHARGE FOR UNLOADING ND LOADING OF VARIOUS ARTICLES. EXHIBIT P3OF THE REQUEST FOR POLICE PROTECTION MADE BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 30.01.2021. EXHIBIT P4OF THE ACKNOWLEDGEMENT ISSUED BY THE 1ST RESPONDENT EVIDENCING RECEIPT OF EXHIBIT P3 REQUEST MADE BY THE PETITIONER ON 30.01.2021. EXHIBIT P5OF THE COMPLAINT DATED 01.02.2021 FOR POLICE PROTECTION MADE BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P6OF THE ACKNOWLEDGEMENT ISSUED BY THE 1ST RESPONDENT EVIDENCING RECEIPT OF EXHIBIT P5, COMPLAINT MADE BY THE PETITIONER ON 01.02.2021. RESPONDENTS' EXHIBITS:

-17- WP(C).No.4633 OF 2021(D) ANNEXURE R6(a)OF THE AGREEMENT/DECISION DATED 01.02.2021 EXECUTED BY THE VYAPARI VYYAVASAYI AGOPANA SAMITHIN AND THE 5TH, 6TH AND 7TH RESPONDENTS