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2007 DIGILAW 228 (CAL)

HINDUSTAN MOTORS LTD. v. STATE OF WEST BENGAL

2007-03-28

DIPANKAR DATTA

body2007
( 1 ) THE petitioner No. 1 is a car manufacturer of repute. It has its factory at Bhadrakali, Police Station-Uttarpara, District-Hooghly. The claim that has been raised in this petition is that the members of some of its employees unions, being respondent Nos. 7 to 9 herein, on and from 11. 3. 07 have been staging unauthorised "gharao" and indulging in unlawful agitation claiming settlement of certain demands and in the process have been hampering the peaceful industrial environment and the process of production in its factory premises. It is alleged that willing employees are not being allowed to enter and exit the office buildings and production unit; ingress of trucks/ trailers to the factory premises and egress therefrom are being obstructed by the agitating employees belonging to the respondent Nos. 7 to 9; and officials of the petitioner No. l have been manhandled and its properties ransacked. It is further alleged that number of complaints have been lodged with the local police station for assistance which has not been provided compelling the petitioners to approach the Court of the Executive Magistrate by filing petitions under section 144 of the Code of Criminal Procedure. Although orders have been passed by the Executive Magistrate directing maintenance of peace and tranquillity in the area and also to ensure that the company runs smoothly, no effective action has been taken by the police thereby compelling the petitioners to approach this Court seeking relief. ( 2 ) MR. Bhattacharya, learned Senior Counsel for the petitioners has submitted that in the guise of Trade Union activities, no employee is authorized to indulge in hooliganism and create impediment either in the process of production of the petitioner No. l or in any manner to endanger the safety and security of other employees. It is his submission that willing employees are being obstructed from attending work and a reign of terror is prevailing in the area in question. The situation, according to him, warranted positive action on the part of the police authorities so as to ensure that law and order is maintained and that the agitating employees are not allowed to take law in their own hands. But the police having remained inactive, he has, accordingly, prayed for orders in terms of the prayers as contained in the petition. ( 3 ) MR. But the police having remained inactive, he has, accordingly, prayed for orders in terms of the prayers as contained in the petition. ( 3 ) MR. Bagchi, learned Counsel appearing for the respondent No. 7 has vehemently opposed the writ petition. He has submitted that the petitioners having availed of remedy provided under section 144 of the Code of Criminal procedure, ought not to be allowed to proceed with the present writ petition. He has referred to a bench decision of this Court reported in 1995 (1) CHN 224 (para 14) : CPA Consultancy Services Pvt. Ltd. Employees' Union and ors. vs. CPA Consultancy Services Pvt. Ltd. and Ors. for the proposition that once the petitioners have availed of an alternative remedy provided by statute, a writ petition on the self-same cause of action would not be maintainable. It is his further submission that when the Magistrate is approached under section 144 of the Code of Criminal Procedure, the Magistrate may draw up proceedings provided he is satisfied that circumstances do warrant passing of an order in terms of the same. It would, therefore, involve an element of subjective satisfaction of the Magistrate and having regard to the orders passed, it is clear that the Magistrate concerned was not at all satisfied and, accordingly, did not draw up any proceeding. He urged this Court not to substitute the view of the Magistrate since the Magistrate was well-suited to consider the issue of maintenance of law and order. He has further submitted that the respondent No. 7 is the sole bargaining agent in respect of the industrial establishment of the petitioner No. 1 for two years with effect from 1. 4. 05 and it has been espousing the cause of its members strictly in accordance with the provisions of the Trade Unions Act, 1926 (hereafter the said Act ). He has referred to prayer (e) of the writ petition and has submitted that the petitioners have asked for a relief which if granted, would curtail the rights of the members of the respondent No. 7 as guaranteed by the said Act and in this connection he has referred to section 28e thereof (West Bengal amendment) and has submitted that the prayers cannot be granted at all. However, he has submitted that none of the members of the respondent No. 7 have been obstructing any of the willing employees to attend work and he argues that if the attendance registers maintained by the petitioner No. l are produced, it would be evident that even at the time demonstrations were being carried out by the respondent No. 7, the willing employees had, in fact, attended to their respective work. He has submitted that there being no valid reason for exercising writ powers in the present case, the writ petition is liable to be dismissed. ( 4 ) OPPOSING the petition Mr. Patranabish, learned Advocate appearing for the State has submitted that the issue arising out of the protests of the disgruntled employees is pending consideration before the Labour commissioner in conciliation proceeding. The situation prevailing in the factory premises and adjoining areas are not such which would warrant interference by this Court by passing any direction on the police authorities since they are quite alive to their duties and obligations and he has, accordingly, prayed for dismissal of the writ petition. ( 5 ) IN reply, Mr. Bhattacharya submitted that a proceeding under section 144 Code of Criminal Procedure under section 144 Code of Criminal Procedure in the given facts of the case cannot be said to be an efficacious alternative remedy. In support of his submission, he has referred to the Special Bench decision of this Court reported in AIR 1968 Cal 407 : Jay Engineering Works limited vs. State of West Bengal and Ors. (Para 37 ). It is next submitted by him that as a result of the "gharao" and violent demonstrations resorted to by the members of the respondent No. 7 Union and the other Unions, the business of the petitioner No. l is at stake inasmuch as it has become impossible for it to meet its business commitments and its right to carry on business is in jeopardy. He has also submitted that since there is a threat to right of life and liberty of the officers and employees of the petitioner No. 1 along with their family members, judicial interdiction by the Writ Court being absolutely necessary to set tilings right, he has renewed his prayer for passing of orders in terms of relief claimed in the petition. ( 6 ) THIS writ petition was heard yesterday and today was fixed for passing of order. However, before the order could be dictated, Mr. Kishore Dutta, learned Counsel representing the petitioners prayed for leave of this Court to file a supplementary affidavit. Leave is granted. The supplementary affidavit be retained with the records. ( 7 ) BASED on the contents of the supplementary affidavit he submitted that officers and employees of the petitioner No. 1 who are willing to work were prevented entry by the agitating workers and stones were pelted at them resulting in sustenance of injury by some of the employees. It has also been alleged therein that agitating workers entered the canteen and had destroyed furniture and utensils. As a result of unlawful assembly at the entry gates to the factory premises as well as in front of the main office building, those who have entered the same are not being allowed to come out and have been wrongfully confined. Over the incident of ransacking of the canteen and acts of rioting, First Information Report dated 28. 3. 07 has been lodged with the Inspector-in-Charge, Uttarpara Police Station. ( 8 ) MR. Bagchi, learned Counsel for the respondent No. 7 on the other hand has emphatically disputed the contents of the supplementary affidavit and submits that no such incident as pleaded in the supplementary affidavit occurred at the instance of the members of the respondent No. 7. It is his categorical submission that officers of the petitioner No. 1 have indulged in assaulting the agitating employees resulting in some of them sustaining serious injury, which has since been reported to the police. ( 9 ) THE point urged by Mr. Bagchi, learned Counsel regarding maintainability of the writ petition stands overruled. An order passed by the Magistrate under section 144 of the Code of Criminal Procedure is administrative in nature of temporary duration and the remedy provided thereunder cannot be considered to be an equally efficacious alternative remedy, recourse to which would bar a writ petition. Approaching a magistrate under section 144 of the Code of Criminal Procedure cannot have the effect of precluding the petitioner for vindication of fundamental rights in a writ petition in the given facts. The decision in CPA Consultancy (supra) cited by Mr. Bagchi is distinguishable and cannot be applied on facts and in the circumstances of this case. Approaching a magistrate under section 144 of the Code of Criminal Procedure cannot have the effect of precluding the petitioner for vindication of fundamental rights in a writ petition in the given facts. The decision in CPA Consultancy (supra) cited by Mr. Bagchi is distinguishable and cannot be applied on facts and in the circumstances of this case. ( 10 ) SINCE in the present case the petitioners have expressed an apprehension of threat to life and liberty of its officers, employees, their family members etc. as a result of the volatile situation prevailing in and around the factory premises, and despite having informed the police authorities of the same it is alleged that they have remained inactive, and lives of people are in danger, this Court holds that this writ petition is maintainable in view of the decision of the Apex Court reported in 2006 (4) scc 501 : P. R. Murlidharan vs. Swami Dharmananda Theerta Padar. ( 11 ) HAVING heard learned Counsel for the parties and considering the materials placed before this Court, it appears to this Court that the situation has undoubtedly taken a serious turn and unless orders are passed by this court activating the police authorities there may be loss of valuable lives. ( 12 ) THE respondent police authorities are directed to act forthwith on the basis of complaint lodged by any person disclosing commission of cognizable offence (s) in terms of the extant statutory provisions. They shall also take effective steps to prevent commission of offence (s) in such manner as the circumstances warrant according to law. Any untoward incident, be it at the instance of the members of the respondent Nos. 7 to 9 or at the instance of the officers and employees or management of the petitioner no. 1, shall be dealt with strong hands. ( 13 ) THE members of the respondent Nos. 7 to 9 shall be entitled to continue their Trade Union activities strictly according to law. They shall be entitled to hold demonstrations in support of their claims and grievances beyond the factory premises but in the process they shall remain restrained from causing any obstruction and/or disturbance in free ingress to and egress from the factory premises and office building of officers, employees, trucks, trailers, etc. They shall be entitled to hold demonstrations in support of their claims and grievances beyond the factory premises but in the process they shall remain restrained from causing any obstruction and/or disturbance in free ingress to and egress from the factory premises and office building of officers, employees, trucks, trailers, etc. as well as those who might visit the factory premises of the petitioner No. 1, as the case may be. ( 14 ) IN the event, there be interference/disturbance of any kind by the agitating employees which has the effect of disrupting normal business and production process of the petitioner No. 1 as well as obstruction in free ingress and egress to and from the factory premises of the petitioner No. 1 as well as office building, as referred to above, the petitioner No. 1 shall be at liberty to bring such interference/obstruction to the notice of the local police authorities who shall take immediate steps to remove such obstruction/interference. ( 15 ) WITH the aforesaid directions, the writ petition stands disposed of. ( 16 ) SINCE affidavits have not been invited from the respondents, allegations contained in the writ petition shall not be deemed to have been admitted by them. ( 17 ) COPY of this order, duly countersigned by the Assistant Registrar (Court) be given to the learned Advocates for the parties on the usual undertaking. Writ petition disposed of.