Abdul Kareem v. Unnikamma — 1990 DIGILAW 319 (KER)

Judgment :- This Original Petition is for a writ of mandamus or other appropriate direction to respondents 3 and 4 police Officers to afford adequate police protection to the petitioner for doing work such as cutting of trees and removing the same from the estate referred to in Ext.P1 agreement without any obstruction to the petitioner and his workmen by respondents 1 and 2 or any other headload workers or other persons. 2. The petitioner is a contractor doing business in timber. He entered into an agreement dated 28-3-1990 with one Shri Pattikkadan Alikutty, the additional 8th respondent for cutting and removing 600 old rubber trees standing in Madhu mala Estate in Sy.no.R.S.164 of Kalikavu Village. Ext.P1 is the agreement. By Ext.P1 the estate owner sold the rubber trees to the petitioner and the petitioner was to cut and remove the same before 15th July. The petitioner had to pay an amount of Rs.50, 000/- and on the date of agreement an amount of Rs. 10,000/- had to be paid by the petitioner as advance. If the trees are not cut and removed within the time the advance paid will be forfeited. It is admitted by the 8th respondent before me that the time has been extended by two months from 15-7-1990 and the trees could not be cut and removed for reasons beyond the control of the petitioner. For the purpose of cutting and removing the said trees from the estate the petitioner engaged 83 workers belonging to respondents 5 to 7. The operation regarding the cutting of trees commenced on 7-5-1990. But when lorries came to the estate for the purpose of loading and removing the timber from the estate, according to the petitioner, respondents 1 and 2 styling themselves as leaders of the Headload Workers of Poongode area obstructed the loading activities attended to by the workers of the petitioner. According to respondents 1 and 2 cutting of the trees and transportation of the same from the estate ought to have been started only with the consent of respondent's land 2. They also insisted that cutting, loading and transporting of trees can be done only through the Headload workers nominated by respondents 1 and 2. Respondents 1 and 2 forcibly prevented the petitioner from removing the trees. They also insisted that cutting, loading and transporting of trees can be done only through the Headload workers nominated by respondents 1 and 2. Respondents 1 and 2 forcibly prevented the petitioner from removing the trees. If the petitioner and the workmen numbering over 80 forcibly transport the goods, it was apprehended that breach of peace and law and order situation would be precipitated. Hence the petitioner approached the 3rd respondent, the Sub Inspector of Police for protection. Thereafter the petitioner was summoned to the Kalikavu Police Station by the 3rd respondent. Even though the petitioner went to the police station, in view of the adament and unreasonable attitude taken by the leaders of the headload workers' union, no agreement could be arrived at. Thereafter the petitioner approached the Circle Inspector of Police as advised by the 3rd respondent for exploring the possibility of arriving at a settlement. A settlement talk with the leaders of the Headload Workers Union in the presence of the Circle Inspector of Police also did not bring about a result. According to the petitioner this situation arose because of the unreasonable attitude of respondents land 2. Therefore seeing that respondents land 2 was determined to take the law into their own hands and prevent the lawful activities and peaceful conduct of the business by the petitioner, the petitioner approached the 4th respondent requesting him to extend adequate police protection for enabling the petitioner to do the work of cutting of trees and removal of the same from the estate. Ext.P2is the said request. It is pointed out in Ext.P2 that all attempt for a peaceful solution of the problem at the level of Sub Inspector and Circle Inspector of Police having been failed, the petitioner had no other alternative but to approach the 4th respondent for a solution of the problem. Ext.P2 is dated 7-6-1990. There was no positive move to solve the problem or extend police protection for cutting and removing the trees mentioned in Ext.P1 agreement. Hence the petitioner filed this Original Petition seeking police protection. 3. When the Original Petition came up for admission the Government Pleader took notice on behalf of the 4th respondent and the petitioner took notice to respondents 1 to 3, and 5 to 7 by special messenger. Additional 8th respondent, the owner of the estate got himself impleaded. 4. Hence the petitioner filed this Original Petition seeking police protection. 3. When the Original Petition came up for admission the Government Pleader took notice on behalf of the 4th respondent and the petitioner took notice to respondents 1 to 3, and 5 to 7 by special messenger. Additional 8th respondent, the owner of the estate got himself impleaded. 4. On behalf of respondents 1 and 2 a counter affidavit has been filed in which it is stated that they were doing loading and unloading work in Poongode are for the past several years. According to them they did not demand exclusive employment to them. They only requested the petitioner to employ workers belonging to Poongode area also. Conciliation before the Circle Inspector of Police failed not because the adament attitude of respondents 1 and 2, but according to them, the blame should be fastened to the petitioner alone. Respondents 1 and 2 relied on the Division bench ruling reported in George v. Circle Inspector of Police, 1990 (1) KLT 741. 5. The Government Pleader submitted that the scheme framed under the Headload Workers' Act has not been extended to the area and therefore the petitioner is free to engage his own workmen for doing the work. Counsel on behalf of respondents 5 to 7 submitted that they represent the 83 workers who are the employees of the petitioner and so long as they continue in the employment of the petitioner respondents land 2 have no right to prevent them from doing the work for which they have been detailed by their employer. 6. Since the scheme framed under the Headload Workers Act has not been extended to the area in question, the petitioner has the right to engage his own workmen to carry on the work. The contention of respondents 1 and 2 that they alone have the right to do the headload work cannot have any legal foundation. It has been held in Chelpark Co. v. Commissioner of Police, 1967 (2) LLJ. 836 that if the workers transgress the bounds of law and create an atmosphere likely to affect law and order, which are the foundations of the civilized society, the police should not lag behind to do its statutory duty of taking appropriate action contemplated by law. Otherwise there would be chaos and confusion in the country affecting the normal avocations of people. Otherwise there would be chaos and confusion in the country affecting the normal avocations of people. The powers and duties of the police are directed not in the interests of the public but to the protection and welfare ofthe public. The police officers have obligation and duties to perform such as dispersal of unlawful assembly under certain circumstances and investigation of cognizable offence etc. When inaction on the part ofthe police in this regard is brought to the notice of this court, the court in exercise of its extraordinary jurisdiction will take into consideration the gravity of justice for the High Court is not only a court of law but the superior court of justice. The police of this country owe to the public a clear legal duty to enforce the law, a law that they recognise and perform most efficiently. In the extreme unlikely event of the police failing or refusing to carry out their duties, the court, as has been held by several decisions, is not powerless to intervene. In the decision in Kannan v. Superintendent of Police, 1974 KLT 616 this Court laid down that if there is imminent danger or peril to life of citizen the police has to extend that much protection as is necessary to avert such harm. When there is a reasonable apprehension in the mind of the citizen that he will not be permitted to remove the goods and machinery belonging to him or that he would not be able to protect his property without proper assistance from the police and if they ask such protection, the police authorities will have to give protection or assistance. Such a protection or assistance cannot be refused on the ground that public peace or order is not likely to be affected. 7. InJoyMathewv. Superintendent of Police, 1989 (1) KLT 314 this Court held that the unions of Headload Workers have no legal right to insist that the work of unloading the goods that come by the truck should be done by the workers of the union themselves and not by the workers of the master's choice. In so holding the learned Single Judge followed the Division Bench ruling in Writ Appeal Nos. 124/1988 and 228/1988. The learned Single Judge observed as follows: "In Writ Appeal Nos. In so holding the learned Single Judge followed the Division Bench ruling in Writ Appeal Nos. 124/1988 and 228/1988. The learned Single Judge observed as follows: "In Writ Appeal Nos. 124/88 and 228/88 this Court had held that the Unions of Headload workers have no legal right to insist that the work of unloading the goods that come by the truck should be done by the workers of the union themselves and not by the workers of the master's choice. Consequently the petitioner is entitled to carry on the loading and unloading work in his establishment with his permanent employees. Neither the 4th respondent nor any of its follower has got any right to interfere with the petitioner's freedom to have the loading and unloading work in his establishment carried on by the employees of his choice. This legal position is binding on all Unions of Headload Workers. The police are duty bound to protect the said right. They are not to shirk from their responsibilities and duties under the guise that the dispute relates to labour". The Headload Workers have not been engaged by the petitioner in this case. The Union represented by the Headload Workers has no right under the Headload Workers Act or any law to insist that they alone have the right to cut and remove the rubber trees. It is perfectly within the right of the estate owner to give con tract for cutting and removing the trees and the contractor can get the work done by his own employees. In Entick v. Carrington, Howards State Trials 1030 (1765-19 State Tt.1029) Lord Camden observed: "The great end, for which men entered society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law are various Distresses, executions, forfeitures, taxes etc. are all of this description, wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it so minute, is a trespass. are all of this description, wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action though the damage be nothing, which is proved by every declaration in trespass, where the defendant is called upon to answer for brushing the grass and even treading upon the soil. If he admits the fact, he is bound to shew by way of justification that some positive law has empowered or excused him. The justification is submitted to the judges who are to look into the books; and if such a justification can be maintained by the text of the statute law or by the principles of common law. If no such excuse can be found or produced, the silence of the books is an authority against the defendant and the plaintiff must have judgment". A concerted movement by workmen is permissible provided it is peaceful and does not violate any provisions of the law. But when such a gathering is unlawful or commits an offence then the exemption is lost. Thus where it resorts to unlawful activities such as criminal trespass or indulges any violence using criminal force or criminal assault or mischief to person or property or molestation or intimidation the union cannot claim any exemption from legal proceedings. 8. In considering the question whether the Headload Workers have any right to prevent carrying out the loading and unloading work by a person employing his own workmen and whether police protection can be extended in such case, Malimath C.J. speaking for the Division Bench in Writ Appeal No. 228 of 1988 observed: "The learned Single Judge has in our opinion rightly held that the appellant-union of Headload Workers have no legal right to insist that the work of unloading the goods that come by the truck should be done by the workers of the appellant-union themselves and not by the workers of the master's choice. As there is clear evidence of such obstruction by the workers of the appellant-union, the learned Single Judge was fully justified in declaring that the appellant-union have no legal right and saying that if an occasion arises when the appellant or members of the appellant-union interfere with the legitimate right of choosing one's own workmen for unloading that it becomes the duty of the police to prevent unlawful action of causing obstruction". His Lordship further observed in Writ Appeal No. 124 of 1988: "The learned Single Judge has directed police protection being given to enable the first respondent to carry out his work and business without any obstruction or disturbance from persons who have no right to obstruct the petitioner/1st respondent in carrying on his business". Counsel for the contesting respondents submitted that the decision reported in George v. Circle Inspector of Police 1990(1) KLT 741 is an authority for the proposition that no police protection should be ordered to contractors for cutting and removing the rubber trees as the proper remedy in such case is a suit. I do not understand that the decision is an authority for the proposition as contended. Their Lordships clearly stated that on hearing the rival pleas: "We are of the view that the averments in the original petition are vague and material facts have not been stated. The absence of proper and necessary particulars and materials in the affidavit filed in support of the original petition warrants a dismissal of the petition in limine". Their Lordships for that laid down that it is settled law that the jurisdiction vested in this Court under Article 226 of the Constitption is an extraordinary one and the grant of relief is discretionary. The jurisdiction is one to be exercised with great circumspection and to remedy injustice. Broadly stated, the existence of an alternate remedy is no bar for the exercise of jurisdiction. But one of the important factors, which will deter this Court to entertain a petition under Article 226 of the Constitution to grant the relief, is the existence of an alternate remedy, which is equally efficacious and adequate to the petitioner to ventilate his grievances. As to whether an alternate remedy is equally efficacious and adequate is largely a question of fact which depends upon the facts and circumstances of each case. As to whether an alternate remedy is equally efficacious and adequate is largely a question of fact which depends upon the facts and circumstances of each case. The petitioner is not denying any work to any employee in this case. In fact he intends to employ more workmen on a permanent basis. The objection is from another set of workmen (headload workers) claiming that they alone have the right to do the headload work in the area. By such agitation, they are only helping to deny the work to large number of workmen who have already been employed by the Contractor. In the decision in L.Michael v. Johnson Pumps Ltd. 1975 (1) SC 574 observed: "Two socially vital factors must inform the understanding and application of Industrial jurisprudence. The first is the constitutional mandate of Part IV obligating the State to make * provision for securing just and humane conditions of work. Security of employment is the first requisite of a worker's life. The second equally axiomatic consideration is that a worker who wilfully or anti-socially holds up the wheels of production or undermines the success of the business is a high risk and deserves, in industrial interest, to be removed without tears. Legislation and judicial interpretation have woven the legal fabric". By imposing impedement the workmen represented by headload workers union deny the opportunity to other workmen who are the breadwinners in their family. It is not their legal right to insist that the loading and unloading work could be done only by them. There is no right to be protected in them. If because of the muscle power or organisational strength, the petitioners are prevented to get the work done by them by employing their own workmen then police protection will have to be extended to them. Otherwise the similar claim may be advanced by other persons like Engineers, Clerical Staff etc. which in turn will lead confusion and chaos. If an industrial establishment is asked to run the establishment only by employing Engineers in that locality the unit may become an economic dead weight. If it is conceded that only headload workers of the locality have the right to do the work of loading and unloading by analogy the same principle later on will have to be extended to Engineers and other employees. 9. If it is conceded that only headload workers of the locality have the right to do the work of loading and unloading by analogy the same principle later on will have to be extended to Engineers and other employees. 9. In the decision in AIR 1989 SC1607 it is stated that Article 226 confers power on the High Court to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. It may be pointed out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy, which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Art.226. 10. It is stated that for the purpose of cutting and removing the trees from the estate the petitioner engaged 83 workers belonging to respondents 5 to 7 Headload Workers' Union and the operations regarding the cutting of trees commenced on 7-5-1990. The obstruction is from respondents 1 and 2 stating that the operation regarding the cutting of the trees and transportation of the same from the estate should not have been started without obtaining the consent of respondents 1 and 2. Respondents 1 and 2 have not been engaged and they have no manner of right to get the work of loading and unloading done by engaging their own workmen. Respondents 1 and 2 have not been engaged and they have no manner of right to get the work of loading and unloading done by engaging their own workmen. The prevention and intimidation by them in carrying out the work by the petitioner engaging his own workmen belonging to respondents 5 to 7 is clearly illegal and police protection will have to be extended to them to get the work done. The petitioner approached the Sub Inspector of Police and thereafter the Circle Inspector of Police and still further the 4th respondent, Deputy Superintendent of Police. Ext. P2 contains the details of all his grievances and requests for action in redressal. The 4th respondent has a duty to act pursuant to Ext. P2. It is submitted on behalf of the management that the agreement has been extended by two months from 15-7-1990 and therefore the cutting and removing of timber from the estate will have to be done by the petitioner within the extended time. In the circumstances I direct respondents 3 and 4 to take appropriate action pursuant to Exts. P1 and P2 in the light of observation herein contained within a period of two weeks from the date of receipt of a copy of this judgment. The Original Petition is disposed of as above.