Madras High Court
G.Thamizharasan vs The Superintendent Of Police on 17 August, 2017
Author: P.N. Prakash
Bench: P.N. Prakash
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON: 12.04.2018 DELIVERED ON: 20.04.2018 CORAM: THE HONBLE MR. JUSTICE P.N. PRAKASH W.P.Nos. 6137 and 7132 of 2018 and W.M.P. Nos. 7560, 7561, 8834 and 8835 of 2018 W.P.No.6137 of 2018: Workmen of DMC Automotive Private Ltd. Rep. by their Five Member Committee 1. G.Thamizharasan 2. K.Premkumar 3. B.Vignesh 4. P.Prakash Kumar 5. S.Muthazhagan Having office at No.197/8, J.N.Road Oil Mill, Thiruvallur 602 001 Petitioner Vs. 1. The Superintendent of Police Thiruvallur District 602 001 2. The Inspector of Police Pennalurpet Police Station Uthukottai Taluk 3. The Management of DMC Automotive Private Ltd. Rep. by its Managing Director No.5, Othappai Village Uthukottai Taluk Thiruvallur District 602 023 4. The Joint Director of Industrial Safety and Health No.31, Ellaiyamman Koil Street Thiruvottiyur Respondents W.P.No. 7132 of 2018 DMC Automotive Private Limited No.5, Othappai Village Uthokottai Taluk Tiruvallur 602 023 Rep. by its Deputy General Manager Mr.A.Shreenivason Petitioner Vs. 1. The Inspector of Police Uthokottai Police Station Uthukottai Thiruvallur District 2. DMC Automotive Private Limited Five Men Committee No.197/8, JN Road, Oil Mill Thiruvallur 602 001 Rep. by its Member K.Premkumar Respondents Prayer in W.P.No.6137 of 2018: Writ Petition filed under Article 226 of the Constitution of India seeking to issue a a writ of mandamus directing the respondents 1 and 2 not to aid the third respondent Management to engage contract workers in the direct manufacturing processes at its manufacturing facility at No.5, Othappai Village, Uthukottai Taluk, Thiruvallur District. Prayer in W.P. No. 7132 of 2018: Writ Petition filed seeking to issue a Writ of Mandamus directing the first respondent to take appropriate steps or action based on the complaint lodged by the petitioner on 10/3/18 by granting adequate and effective police protection to ensure that the second respondent, their members any workmen, servants, representatives and agents do not hold demonstrations, dharnas, blockage, gherao, shouting slogans, putting up loud speakers, pasting any banners or cause hindrance in the egress and ingress of the willing workers, staff, managerial personnel and vehicles material or goods of the petitioner, within a radius of 500 meters at its working place at No.5, Othappai Village, Uthokottai Taluk, Tiruvallur 602023 and consequently, declare and strike carried out by the second respondent and its members from 10.3.2018 as illegal and against the provisions of the Industrial Disputes Act. For petitioner in Mr.V. Prakash, Sr. Counsel W.P. No.6137 of 2018 for M/s. R. Gokulraj For petitioner in Mr. Silambanan, Sr. Counsel W.P. No.7132 of 2018 for M/s. Kavya Silambanan For R1,R2 & R4 in Mr.D.Raja W.P.No. 6137 of 2018 Government Advocate and for R1 in W.P. No.7132 of 2018 - - - - - COMMON ORDER
The first writ petition, viz., W.P. No.6137 of 2018 is filed by 5 workers of the third respondent Management claiming to be a Five Member Committee representing the workmen of the factory seeking a direction to the first two respondents in that writ petition not to aid the third respondent Management in engaging contract workers in direct manufacturing process at their factory. When the matter came up on 19.03.2018, notice was ordered to the respondents.
2 Subsequently, the Management of the company filed the second writ petition, viz.,W.P. No.7132 of 2018, seeking a direction to the police to take appropriate action on the complaint lodged by them on 10.03.2018 and for grant of adequate and effective police protection, so that, the workmen of the factory represented by the Five Member Committee do not hold any demonstration, dharna, blockage, gherao, shouting slogans, etc. thereby causing hindrance to egress and ingress of the willing workers, staff and Management staff and vehicles within 500 meters radius of the factory premises. The second writ petition came up on 27.03.2018 and it was directed to be posted along with the first writ petition filed by the workmen.
3 When the matter came up on 04.04.2018, after hearing both the learned Senior Counsel, this Court recorded as follows:-
The dispute between the parties is essentially a labour dispute, in as much as the case of the workmen is that the Management is seeking police aid for retrenching their service and it is the case of the Management that the workers of the labour union are evading from reporting for duty.
2.Mr.V.Prakash, learned Senior Counsel appearing for the workmen submitted that the workmen are ready to report for duty.
3.Mr.Silambanan, learned Senior Counsel appearing for the Management submitted that if the workers report for duty, the Management is willing to permit them to resume the work. 4 For the sake of convenience, the parties are broadly referred to as the Five Member Committee and Management. The workers represented by the Five Member Committee raised an industrial dispute before the Assistant Commissioner of Labour, Chennai 108 with reference to their charter of demands. It was submitted that the Management should make the 56 workers named in their charter of demands, as permanent workers, from the date on which they had completed 480 days of service and to pay the wages payable to the permanent workers. There were 26 other demands enclosed in their charter. The Five Member Committee also claimed that they represent 77 workers. The Management was running the factory from the year 2008 and had confirmed only 21 workers. They were also engaging other workers as Apprentices and Contract Workers. However, those workers are also directly employed in the manufacturing process. Based on the charter of demands and the industrial dispute raised under section 2(k) of the Industrial Disputes Act, 1947 (for short the ID Act), the Assistant Commissioner of Labour took up the dispute on his file and asked the Management to participate in the talks initiated by him vide his letter dated 17.08.2017.
5 Even while the talks were pending, the Five Member Committee issued a strike notice dated 01.03.2018 and sent their statement under Rule 59 of the Tamil Nadu Industrial Dispute Rules, 1958 to the authorities. The immediate provocation was that the Management had dismissed B.Vignesh and Naresh (two members of the Five Member Committee) and also transferred as many as 10 workers. The Assistant Commissioner of Labour, on receipt of the strike notice, issued a proceeding in Na.Ka.No.A/172/18 dated 02.03.2018 and gave advice to both sides. He advised the workmen that since he has proposed to hold conciliation talks on 07.03.2018 in his office, they should not indulge in strike and similar activities and should resolve their differences through negotiations. Similarly, the Management was asked to participate in the conciliation talks and was also advised that they should maintain cordial atmosphere in order to keep industrial peace and must take appropriate steps.
6 In the meanwhile, the Management published a notice in their notice board dated 06.03.2018 stating that the proposed strike notice issued by the Five Member Committee was motivated and was sowing seeds of bad intention and that the workers who want to resolve their differences with the Management can directly approach the Management and not to be misled by the Committee. The Management also claimed by their communication dated 10.3.2018 that some of the apprentice trainee workers had indulged in strike with effect from 10.03.2018 and the Management, after holding talks with those persons, claimed that the workmen had given up their demand for direct action and due to the assurance given by them, termination orders given to G.Tamizharasan, P.Prakash Kumar and K.Surender Babu were revoked.
7 While the workmen claimed that there was illegal lockout of the workmen from attending to work, the Management claimed that the workmen have been on an illegal strike with effect from 10.03.2018. The Management, in their reply remarks sent to the Conciliation Officer dated 12.03.2018, stated that the striking workmen have occupied the front gate and are not allowing the Management from coming inside and going outside; they are also preventing the contract workers as well as the vehicle movement; the permanent workers were threatened and the managerial staff members were abused in filthy language. The Management also informed the Conciliation Officer that in respect of the disciplinary action taken by the Management, the workers can have legal recourse against that action. The workmen claimed that in the conciliation meeting held, the Conciliation Officer had advised the Management to allow the 54 workers as well as Tamizharasan, Prakash Kumar and Surender Babu who were denied employment.
8 The Conciliation Officer, by his advice dated 16.03.2018, had advised the parties as follows:-
@nkw;bghUs; bjhlh;ghf ,t;tYtyfj;jpy; 15/03/2018 md;W eilbgw;w ngr;Rthh;j;ijapy; ,Ujug;gpdUk; fye;J bfhz;ldh;/ eph;thfk; jdJ gjpy; kDtpid jhf;fy; bra;jJ/ mg;gjpy; kDtpy; 50 gzpapil ePf;fk; bra;ag;gl;l gapw;rpj; bjhHpyhsh;fs; kw;Wk; epue;ju bjhHpyhsh;fSf;F 15/03/2018 Kjy; kPz;Lk; gzp tH';Ftjhft[k;. 3 bjhHpyhsh;fs; gzp ePf;fk; bra;ag;gl;Ls;sjhy; mth;fSf;F kPz;Lk; gzp tH';f ,ayhJ vdt[k;. ,J bjhlh;ghf rkur ngr;Rthh;j;ijapy; <Lgl jahuhf ,Ug;gjhft[k; bjhptpj;Js;sJ/ Mdhy; kDjhuh;-Ith; FG midj;J bjhHpyhsh;fisa[k; cldoahf kPz;Lk; ntiyf;F vLj;Jf; bfhs;s ntz;Lk; vd;Wk;. gzpePf;fk; bra;ag;gl;l 3 bjhHpyhsh;fis kPz;Lk; gzpf;F vLj;Jf; bfhs;shtpl;lhy;. kw;w bjhHpyhsh;fs; gzpf;F jpUk;gkhl;lhh;fs; vd;Wk;. gzp ePf;fk; bra;ag;gl;l 3 bjhHpyhsh;fSf;F kPz;Lk; gzp tH';Fk; tiu j';fsJ epiyapy; khw;wk; ,y;iy vdt[k; bjhptpj;jdh;/ gzp ePf;fk; bra;ag;gl;l 3 bjhHpyhsh;fSf;F kPz;Lk; gzp tH';f eph;thfj;jpw;F mwpt[iu tH';fg;gLfpwJ/ kw;w bjhHpyhsh;fs; bjhHpy; mikjpia ghJfhf;Fk; tifapy; gzpf;F jpUk;g ntz;Lk; vd;W kDjhuh; - Ith; FGtpw;F mwpt[iu tH';fg;gLfpwJ/ ,Ujug;gpdUk; RK:f epiyia filgpof;f ntz;Lk; vd;Wk;. ve;jtpj neuo eltof;ifapYk; <Lgl ntz;lhk; vdt[k; ,Ujug;gpdUf;Fk; mwpt[iu tH';fg;gLfpwJ/@ 9 The fact that Tamizharasan and Surender Babu have been discharged from service vide orders dated 09.03.2018 is not in dispute as the Five Member Committee itself has filed those discharge orders in the second additional typed set. Similarly, as against their termination, the Five Member Committee had also made a demand for their reinstatement as seen from the letter dated 10.03.2018 sent by them to the Management and the entire matter is seized of by the Conciliation Officer and the conciliation is said to be pending.
10 Even while the conciliation talks were pending, W.P. No.6137 of 2018 was filed by the Five Member Committee with the relief set out above. With reference to the strike notice issued by the Five Member Committee, the reason for the same is set out in para 7 of the affidavit which is as follows:-
I submit that the action of the Management in transferring the workers from one department to another pending the industrial disputes is an unfair labour practice prohibited under the Industrial Disputes Act. Since the Management had been indulging in such unfair labour practices, the petitioner issued a notice of strike on 1.3.2018 informing the intended date of strike i.e. on 16.3.2018 as against the transfer of workmen and increase of workload. 11 With reference to the rejection of the offer made by the Management during conciliation, the Five Member Committee stated their position which is as follows:-
The Management put up a notice cancelling the dismissal order dated 09.03.2018 issued to Mr.G.Tamizharasan, P.Prakash Kumar and K.Surendar Babu. However, the Management came forward with an illegal demand requiring the petitioner to withdraw the strike notice dated 01.03.2018 and only thereafter it will allow the workers to work. I submit that since the demand of the Management to withdraw the strike notice was illegal the workers are not agreeable for the same and the Management is continuing to lockout the 54 workers who have raised industrial dispute before the Assistant Commissioner of Labour. 12 Further, in para 10, the Five Member Committee also stated as follows:-
On 12.3.2018, the Management issued a notice suspending the 51 workmen who were locked out by the Management and in the conciliation held on 13.03.2018, the aforesaid conciliation officer advised the Management to allow all the workers to work. Accordingly, the 54 workers reported for work on 14.03.2018. However, the Management has been stating that it will not allow the three workers namely Mr.G.Tamizharasan, P.Prakash Kumar and K.Surendar Babu contrary to its own commitment made in the notice dated 10.03.2018. 13 Normally, in such matters, either the workmen themselves or their trade union would approach this Court seeking a direction to hold conciliation talks continuously and if no scope for settlement, they would submit a failure report under Section 12(4) of the ID Act to the appropriate Government. In the affidavit filed by the Five Member Committee, in para 5, the following grievance was expressed:-
The Industrial Disputes was taken on file by the Assistant Commissioner of Labour, Kuralagam, Chennai and the conciliation proceedings were commenced. However, the Management was not willing to have any talks with the petitioner and had been dragging the proceedings and the Industrial Disputes raised by the petitioner before the Assistant Commissioner of Labour has been pending without any progress. 14 However, neither the Conciliation Officer nor the Government Labour Department have been made parties to the writ petition, though the matter is substantially an industrial dispute. It is also surprising that the Five Member Committee did not seek any relief against the Labour Department. On the contrary, they have sought a relief against the respondents 1 and 2 who are police officers. In order to sustain the relief, the Five Member Committee had sent a letter dated 13.03.2018 to the respondents 1 and 2 ( a copy is enclosed in Page 4 of the typed set of papers) and had sought the relief set out above. In paras 12 and 13, of the affidavit, it was averred as follows:-
I submit that a complaint was also made to the 1st and 2nd respondent on 13.03.2018 not to aid the 3rd respondent Management to bring in contract workers to engaged in the manufacturing operations. However, the police has been helping the Management.
I submit that unless the respondent is restrained from aiding the Management to engage the contract workers in the direct manufacturing processes the petitioner would suffer great hardship and the 3rd respondent will be successful in its illegal attempts. 15 It is seen from the letter dated 13.03.2018 that there is no allegation against those police officers that they were helping the Management in any way. On the other hand, there was only a narration about the activities of the Management and how their actions were contrary to the labour legislations. In the last paragraph of their letter, they had stated as follows:-
",e;j NH;epiyapy; eph;thfk;. fjtilg;g[ bra;ag;gl;Ls;s bjhHpyhsh;fs; bra;J te;J neuo cw;gj;jp gzpapy;. rl;ltpnuhjkhf xg;ge;j bjhHpyhsh;fis <LgLj;jp tUfpwJ/ xg;;ge;j bjhHpyhsh; rl;lk; gphpt[ 10d; fPH; epue;ju gzp jd;ik bfhz;l epue;ju bjhHpyhsh;fs; bra;a[k; gzpapy; xg;ge;j bjhHpyhsh;fis gzpapy; <LgLj;jf;TlhJ/ ,ij ed;F mwpe;j eph;thfk; bjhlhe;J xg;ge;j bjhHpyhsh;fis ,ae;jpu';fis ,af;Fk; cs;spl;l neuo gzpapy; rl;ltpnuhjkhf <LgLj;jp tUfpwJ/ bjhHpyhsh;fs; bjhHpw;rhiyf;Fs; mDkjpf;fg;glhky; thapw; fjt[ K:lg;gl;L g{l;Lnghl;L itf;fg;gl;Ls;sjhy; bjhHpyhsh;fs; midtUk; btspapny epw;f itf;fg;gl;Ls;sdh;/ rl;lg;goahf ele;J tUk; 54 bjhHpyhsh;fis. eph;thfk; rl;ltpnuhj fjtilg;g[ bra;Jtpl;L. mth;fSila gzpaplj;jpy; xg;ge;j bjhHpyhsh;fis <LgLj;jp tUk; eph;thfj;jpd; kPJ jFe;j eltof;if nkw;bfhs;SkhWk;. eph;thfk; nkw;bfhz;Ls;s rl;l tpnuhjkhd fjtilg;gpw;F rhjfkhf xg;ge;j bjhHpyhsh;fis neuo cw;gj;jpapy; <LgLj;j eph;thfj;jpw;F cjt ntz;lhk; vd;W jhH;ika[ld; nfl;Lf;bfhs;fpnwhk;/" (emphasis added) 16 It is not clear as in what manner the respondents 1 and 2 were aiding the Management and such an action warrants an interference from this Court. The Five Member Committee had also not informed this Court as to their right to seek such a prayer from this Court as against respondents 1 and 2. Though in their letter to the police officers, they had requested not to aid the Management in bringing the contract workers inside the factory, in paragraph 9 of the affidavit, they had described the role of the Deputy Superintendent of Police as follows:
I submit that under these circumstances, the Management started bringing contract labours to work in the place of the workers who have been locked out illegally by the Management which was agitated by the workers. I submit that in the meanwhile the Deputy Superintendent of Police intervened in the issue and advised the Management to restore peace by allowing the workers to work. (emphasis added) 17 The Management (the third respondent), on taking notice on the writ petition, has filed a counter affidavit dated 2.4.2018 and raised a preliminary objection with reference to the maintainability of the writ petition under Article 226 of the Constitution of India. It is necessary to set out their objections found in paras 8, 16, 17 and 18 which are as follows:-
As admitted by the writ petition the matter is pending before the Asst. Commissioner of labour. It is false to allege that there is no progress in the matter. The Management is fully co-operating in the matter whereas the writ petitioner herein adopting delay tactics before the authority with ulterior motive. It is submitted that the trainees have also filed a petition before the Joint Director of Industrial Safety and Health seeking permanency under the Tamil Nadu Industrial Establishments Conferment of Permanent Status Act. Hence all the issues are pending before the statutory authorities for adjudication. The present writ petition has been filed only with the ulterior motive and to armtwist the Management and to harass the Management. In any event in such a situation the writ petitioner cannot try to agitate all these issues under Article 226 of constitution of India.
The present writ petition is not maintainable. It is not for the police to interfere in the internal Management and that too when the statutory authorities are seized of the matter. The police are not assisting the Management and hence the 3rd Respondent filed W.P.no. 7132 of 2018.
The writ petitioner has not made out any case even for maintainability of the writ petition. Such a prayer of mandamus cannot be maintained under Article 226 of Constitution of India.
The writ petition itself is not maintainable and there cannot be any direction to the Respondent police to interfere in the internal Management of the 3rd Respondent and that too when the issues are pending before the statutory authorities. 18 In the light of the above facts and the pleadings set out, it must be seen whether the writ petition filed by the Five Member Committee is maintainable or not. Mr.V.Prakash, learned Senior Counsel for the Five Member Committee placed heavy reliance upon a judgment of this Court in United Labour Federation, Chennai -1 Vs. Government of Tamil Nadu and 5 others [2013 (4) LLN 714 (Mad.)], wherein, certain directions were given to the authorities including the police. Reliance was placed upon direction nos.(i) and (iii) which are as follows:-
(i) The respondents 1 to 3 shall not interfere in the industrial dispute so long as the strike is peaceful. For any reason, if it becomes violent or it takes the shape of disturbing the law and order situation or at the instance of the Management there is likelihood of disturbance to law and order, then, it is for the police authorities to restore peace and to prevent any unlawful activities;
(iii) The respondents 1 to 3 shall not aid the 4th respondent to bring in any person who is not on the Rolls of the Register of Adult Workers maintained under the Factories Act as on 05.12.2012, into the factory to perform the work earlier performed by the workers who are on strike. 19 It is also stated that the said matter was taken on appeal before a Division Bench of this Court in Gates Unitta India Company Pvt. Ltd. Vs. United Labour Federation & Others in Writ Appeal No. 1429 of 2013 and the order of the learned Single Judge was confirmed vide order dated 20.8.2013. S.L.P (Civil) No. 323/2014 preferred by the Management was also dismissed as withdrawn vide order dated 03.02.2014, wherein, the Supreme Court had observed as follows:-
The special leave petition is dismissed. However, any observations made by the High Court as regards the unfair labour practices shall not come in the way of the petitioner to contest the same, in case, any proceeding is initiated against it in future.
Permission to file these special petitions is granted. As prayed for by learned counsel for the petitioners, the special leave petitions are permitted to be withdrawn with liberty to seek appropriate remedy available to the petitioners in accordance with law before the High Court itself. It is made clear that we have not expressed any opinion in this regard. The special leave petitions are dismissed as withdrawn with the aforesaid liberty to the petitioners. 20 As can be seen in the judgment in Gates Unitta (supra), substantial portion of the judgment was spent on deciding as to whether the said company is an automobile manufacturing industry so as to come within the notification issued by the State Government, wherein, automobile manufacturing industry was notified as a public utility service vide G.O.Ms.No.122 Labour and Employment (D2) Dept dated 10.08.2012. Such an exercise came to be made, because, in a notified public utility service, any strike notice issued will deem to commence conciliation proceedings and any strike during the conciliation proceedings is illegal in terms of Sections 22 to 24 of the ID Act. Such a question is unnecessary to be decided in this matter as this Court is not embarking upon as to whether the Management is a public utility service and whether the action initiated by the workmen amounts to an illegal strike.
21 It is suffice to note that in the present case, the workmen have raised a dispute and have also issued a strike notice which had enabled them to have the Conciliation Officer (Asst. Commissioner of Labour, Chennai) to initiate conciliation proceedings, wherein, he had also given advice to parties. It is a fact that in the present case, conciliation proceedings in respect of abolition of the so called contract labour and / or trainee as well as the disciplinary action taken by the Management and other charter of demands, are pending before the Conciliation Officer. In case, the conciliation fails, a failure report will be sent to the State Government under Section 12(4) of the ID Act. On the receipt of the same, the Tamil Nadu Government will have to decide whether it was a fit case to be sent for adjudication by an appropriate adjudicating body. But, in the present case, the parties did not seek any relief for sending the failure report and for issuing an order of reference for adjudication under section 10(1) of the ID Act.
22 On the other hand, a peculiar relief viz., seeking a direction to the police not to aid the Management in engaging contract workers in the direct manufacturing processes, has been sought. No materials were placed to show that the State police were aiding the Management in that regard. The intention of the Five Member Committee is to get a similar relief as was found in the Gates Unitta (supra). However, in order to sustain the relief granted in that case, the learned Judge went on to consider whether the engagement of contract labour would amount to unfair labour practice in terms of Section 2(ra) r/w Section 25-T of the ID Act. The unfair labour practices, both by the employer and the workmen, have been set out in the Fifth Schedule of the ID Act and while the Act has prohibited commission of unfair labour practice by either side, Section 25-U of the Act makes it as a penal offence punishable with a term of 6 months imprisonment with or without fine.
23 The ID Act nowhere provides for a mechanism for preventing an unfair labour practice being committed by a private employer like the Management herein. Such a provision of granting interim orders have been conferred on the Industrial Courts constituted under the Bombay Industrial Relations Act, 1946, by virtue of a special enactment, viz., The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. In respect of the State of Tamil Nadu, neither under the ID Act nor under any other State law, any such powers of pre-emptive actions can be taken by the courts. On the other hand, the only way the workmen can establish that there were unfair labour practices committed by the employer is to prove before the Court which is having jurisdiction to adjudicate the dispute raised by the workmen or straightaway prosecute the employer in terms of Section 25-U of the ID Act after getting the Government to authorize them to prosecute under Section 34 of the ID Act. In the judgment relied upon by the learned Senior Counsel, it is clearly stated in para 47 that the Management had given an undertaking affidavit not to approach the police with reference to the industrial dispute pending before the Conciliation Officer. It was based upon that undertaking the learned Judge had also recorded as follows:-
In view of the same, there can be no difficulty for this Court in issuing a direction to the respondents 1 to 3 not to interfere in the industrial dispute so as the strike is peaceful. 24 However, both the learned single Judge as well as the Division Bench in the case relating to Gates Unitta (supra) did not go into the larger issue as to whether in a writ petition under Article 226, such a relief can be given against a private employer. In fact, the dispute of the Five Member Committee with reference to granting of permanent status to the contract employees is very much pending before the Conciliation Officer and it may be ultimately referred for adjudication by a competent adjudicating body i.e. Labour Court / Industrial Tribunal. It is as and when such a reference is made, the issue of unfair labour practice indulged by the Management can be gone into by that forum by leading evidence before it. In the opinion of this Court, no case has been made out for a direction to the police to desist from aiding the Management.
25 Even otherwise, the Supreme Court, in its judgment in Steel Authority Of India Ltd & Ors Vs National Union Water Front Workers & Others [(2001) 7 SCC 1] held that in the matter of abolition of contract labour or regularization of alleged contract labour, the remedies open to the workmen are limited to Section 10(1) of the ID Act or Section 10 of the Contract Labour (Abolition & Regulation) Act, 1970; under no circumstances, a writ under Article 226 of the Constitution of India can be entertained by the Court with reference to such issues. The relevant passage from the said judgment reads thus:
We have used the expression industrial adjudicator by design as determination of the questions afore-mentioned requires inquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be industrial tribunal/court whose determination will be amenable to judicial review. 26 A Division Bench of this Court, in The Management of Sivananda Steels Ltd. vs. Sivananda Steels Employees' Union [(2005) RD-TN 219], has held as follows:-
.in our opinion the writ petition was not maintainable as it is settled law that ordinarily no writ lies against a private body except a writ of habeas corpus vide Management of GE Power Controls India (Pvt) Ltd., rep. by its Managing Director Vs. Workmen of GE Power Controls India (Pvt) Ltd., (2005) 1 MLJ 165. In the present case the prayer of the writ petitioner in substance was that the employer should not enforce the settlement under Section 18(3) of the I.D. Act. Thus, the relief claimed in the writ petition was against the employer, which is a private company which is not State under Article 12 of the Constitution. Hence, in our opinion, the writ petition was not maintainable vide Federal Bank Limited Vs. Sagar Thomas and Company, (2003) 10 SCC 733, Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology and Others, (2002) 5 SCC 111 and General Manager, Kisan Sahkari Chini Mills Limited Vs. Satrughan Nishad, (2003) 8 SCC 639.
In view of the above, we dismiss the writ petition on the ground of availability of alternative remedy under the I.D. Act. All the questions raised in the writ petition are left open to be agitated by the parties concerned before the appropriate forum. 27 Further, in Transport & Dock Workers Union & others Vs. Mumbai Port Trust & another [2011(2) SCC 575], the Supreme court held that in matters covered by the provisions of the ID Act, resort must be made for adjudication under the ID Act and the Court shall not entertain matters under Article 226 of the Constitution of India. The relevant passage from the said judgment reads thus:
In our opinion the writ petition filed by the appellants should have been dismissed by the High Court on the ground of existence of an alternative remedy under the Industrial Disputes Act. It is well settled that writ jurisdiction is discretionary jurisdiction, and the discretion should not ordinarily be exercised if there is an alternative remedy available to the appellant. In this case there was a clear alternative remedy available to the appellant by raising an industrial dispute and hence we fail to understand why the High Court entertained the writ petition. It seems to us that some High Courts by adopting an over liberal approach are unnecessarily adding to their load of arrears instead of observing judicial discipline in following settled legal principles. However, we may also consider the case on merits. 28 Therefore, I am of the view that the Five Member Committee had not made out any case for entertaining the writ petition and the writ petition is misconceived. Accordingly, W.P.No.6137 of 2018 stands dismissed. This is without prejudice to the workmens right in the pending dispute before the Conciliation Officer and the consequential references, if any, to be made by the State Government. Connected Miscellaneous Petitions are also closed.
29 In W.P.No.7132 of 2018, the prayer of the Management is for grant of police protection based upon their letter dated 10.3.2018 alleged to have been sent to the first respondent-Inspector of Police, Uthokottai Police station. A perusal of the typed set filed by the Management will show that the letter dated 10.3.2018 was a general notice addressed to the trainee workers. The actual letter said to have been given to the first respondent (no proof enclosed for acknowledgment) is actually dated 11.03.2018.
30 Even in that letter, the Management had stated that even in the year 2015, they had sought such a protection. By order dated 21.07.2015 (copy not enclosed), a learned Judge of this Court had given them liberty to seek similar remedies in future, in case, the workmen commit breach of their assurance. The Management had sought the following reliefs from the first respondent-Inspector of Police:-
1.To prevent the above said Five mean committee members, workmen and the other representatives from directly or indirectly causing any interruption, interference and disturbance to the peaceful functioning of the Companys business, operational and manufacturing activities or causing any damage to the Companys plant & machineries or any other injuries, Causing hurts to the officials and Staff Members.
2. Take criminal action for intimidating the officials by threaten to lodge a false complaint on caste abuse and cause communal riots. 31 The letter sent by the Management does not disclose any specific offence committed by the workmen including date, time and the event. The Supreme Court, in Lalita Kumari Vs. Govt. of Uttar Pradesh [(2014) (2) SCC 1] has held that the police are mandatorily bound to register an FIR lodged by a complainant. It was held as under:
In view of the aforesaid discussion, we hold:
i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 32 In this case, there is no complaint dated 10.3.2018 as disclosed in the affidavit and in the prayer lodged by the Management. Further, even if it was a typographical mistake and the letter is actually 11.3.2018, there is no offence disclosed in the alleged complaint. A detailed counter affidavit has also been filed on behalf of the second respondent dated 04.04.2018 denying the allegation made by the Management. The Management, while filing a writ petition seeking the issuance of a writ of mandamus with the State police, should at least disclose the commission of offence by a party and that in spite of the complaint, the authorities have shown indifference. Only in such circumstances, a relief can be granted to an aggrieved party. In this case, as rightly contended by the counsel for the Five Member Committee, the Managements writ petition itself came to be filed as a counter blast to the case filed by them and after receiving notice in their writ petition and not with a view to seeking any genuine relief.
33 This Court in K.C.P. Ltd. vs Inspector Of Police, Tiruvottiyur [1991(2) Law Weekly 120 = 1991(2) MLJ 329] has set out the circumstances under which police protection can be granted to an aggrieved Management in case of any disruption by the workers only, which read as under:
The principles laid down by the Division Bench of this Court in Coimbatore Periyar District Motor Transport Munnetra Sangam (by its President) v. Sivakumar Transports, Tirupur and others (supra), is very clear on this aspect, viz. if the preventing of removal of the goods would involve only the monetary interest of the Management and no public interest is involved, the Court may consider not helping the Management and not interfering in the dispute by way of any injunction orders, and that if the facts and circumstances are such as that it is just and necessary to permit the goods to be removed in order to prevent any waste or loss of goods, or that the acts in relation to which injunction is prayed for will have no effect on public interest, then, injunction against interference with the removal of goods should not be granted. I am of the view that if not granting an injunction will tantamount to affecting public interest, the Court is duty bound to given such protection as is needed. I am entirely in agreement with the judgment of Mohan. J. (as he then was) that police protection, if ordered, might crush lawful and peaceful strikes and demonstration. I am of the view that the order of this Court for police protection if available in the hands of unscrupulous Management, should not be allowed to suppress the legitimate agitations. 34 In the present case, the pleadings and documents filed by the writ petitioner Management does not warrant this Court to grant any relief, more particularly, the relief sought by them. Hence W.P. No.7132 of 2018 stands dismissed. Connected Miscellaneous Petitions are closed. However, this order does not prevent the Management from approaching the local police as and when any offence is committed by any worker or if free ingress and egress of persons/goods/vehicles into the factory is prevented by the 5 Member Committee or workers. In such an event, the police shall take immediate action, if any written complaint is lodged by the Management.
To sum up, both the writ petitions, viz., W.P. Nos.6137 of 2018 and 7132 of 2018 are dismissed. No costs. Connected W.M.Ps. are closed.
20.04.2018 cad Index : Yes/No P.N. PRAKASH, J.
cad To :
1. The Superintendent of Police Thiruvallur District 602 001
2. The Inspector of Police Pennalurpet Police Station Uthukottai Taluk
3. The Joint Director of Industrial Safety and Health No.31, Ellaiyamman Koil Street Thiruvottiyur
4. The Inspector of Police Uthokottai Police Station Uthukottai Thiruvallur District W.P.Nos. 6137 and 7132 of 2018 20.04.2018