Kerala High Court
Midland Rubber & Produce Co. Ltd. vs Supdt. Of Police And Ors. on 8 July, 1998
Equivalent citations: (1999)ILLJ385KER
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan, D. Sreedevi
JUDGMENT Ar. Lakshmanan, J.
1. With the consent of both parties, the appeal itself was taken up for final hearing. The writ appeal is directed against the judgment in O.P. 9188/1998 dated June 18, 1998 directing the District Labour Officer, Pathanamthitta, to consider the matter after convening a conference of the concerned parties and to decide the same. The short facts that are relevant for the purpose of disposal of this appeal are as follows:
2. The appellant filed O.P. 9188/1998 praying for a direction to afford adequate and effective police protection to the appellant, its executives and other staff in order to get the rain guarding work done by the tappers of the Perinad Estate. According to the appellant the original petition had to be filed on account of the fact that in the Perinad Estate belonging to the appellant- company a plastic sheet called 'rain guard' had to be pasted on the bark of the rubber trees in order to protect the tapping cut and the latex collection during monsoon season, which, according to the appellant, will prevent spilling of rain water to the tapping cut as well as into the latex collection cup. It is the case of the appellant that this work was being done by the tappers of the estate for an extra payment and the tappers were preferred for the reason that being experienced in the job, they will ensure the quality of the work as otherwise the output from the tree will be affected. This year, while it was proposed to do rain guard pasting work, the casual employees of the estate demanded that they alone should be allowed to do this work which was not accepted by the appellant, the manager and other supervisory staff of the estate. Because of their refusal they were gheraoed on April 25, 1998 in estate office which continued until 2.30 a.m. on April 26, 1998. This was reported to the 4th respondent who had registered Crime No. 58/1998 in this behalf. When an attempt was made by the tappers on May 7, 1998 who were supplied rain guarding materials, the casual employees of the estate along with some outsiders prevented them and chased and man-handled the tappers and some of the injured had to be admitted in the Government Hospital, Pathanamthitta. It is stated that they threatened, abused and manhandled the Field Officer and damaged and destroyed the rain guards fixed on the rubber trees which was also reported to the 4th respondent by Ext. P1 complaint. Following this, Crime No. 66/1998 was registered by the 4th respondent and the matter is under investigation. The management therefore filed Exts. P2 and P3 representations to respondents 1 to 4 seeking adequate police protection to the tappers and others in order to do the rain guarding work in the estate. As the complaint and the subsequent reminders did not yield any result, the appellant filed the original petition seeking the following prayers: -
"i) to issue a writ of mandamus or any other appropriate writ, direction or order, directing respondents 1 to 4 to afford adequate and effective police protection to the petitioner and its executives and other staff in order to get the rain guarding work done by the tappers of the Perinad Estate;
ii) to direct respondents 1 to 4 to afford adequate and effective police protection to the petitioner to complete the rain guarding work in the Perinad Estate engaging the tappers of the Estate, pending disposal of the Original Petition; and
iii) to pass such other order as this Hon'ble. Court may deem fit and proper in the circumstances of the case."
3. Respondents 5, 6 and 7 filed their counter affidavit contending that on the strength of Ext. R5(a) memorandum of settlement dated January 18, 1971, casual workers are doing the rain guarding work. It was also submitted that they have approached the District Labour Officer who had initiated conciliation vide Ext. R5(c) notice. The management filed a reply to the counter affidavit along with annexures P4, P5 and P6. In the reply affidavit it was reiterated that the rain guarding work was being done by the regular tappers of the estate and the claim of the Unions regarding engagement of casuals for the work was denied. It was further stated that although in Ext. R5 (a) it was agreed that the practice in the neighbouring Lahai Estate was agreed to be followed, the Lahai Estate was following the system of engaging permanent workers for rain guarding work and this contention of the appellant was supported by producing Ext. P5 letter dated June 15, 1998 issued by the Manager of the Lahai Estate. Ext. P5 letter reads as follows :-
"I refer to your letter No. 500/98 dated June 6, 1998.
This Estate employs permanent general workers for rain-guarding and also engages temporary workers if it is essential.
I shall be obliged if you would inform the practice prevalent in your Estate."
It is further stated that by settlement dated May 9, 1994 produced as Ext. P6 the workers had agreed to co-operate with the management of the estate in ensuring the completion of the rain guarding work before the onset of monsoon. It was submitted on behalf of the management that the rain guarding work at the estate has been carried out only by the tappers of the estate. Along with the writ appeal the management filed C.M.P. No. 3223/1998 to accept Annexures A,B and C on the file. The above petition was ordered as prayed for. As already noticed the causal employees of the estate under respondents 5 to 9 obstructed the work and when the request for police protection did not evoke any response from respondents 1 to 4, the appellant was constrained to file this petition.
4. In the counter affidavit filed by the workers it has been contended by the Unions that pursuant to Ext. R5(a) agreement of 1971, the practice in the estate was to engage causal employees. According to the appellant, the contention of the respondent- Unions that the casual employees were doing the work of rain guarding was totally incorrect. In support of the contention documents were filed as Annexures A,B and C in order to show that the tappers of the estate who are the permanent employees were doing the work of rain guarding in the past. For this purpose the management produced extracts of wage registers for the years 1995, 1996 and 1997 which evidenced receipt of payment by tappers of the estate for the rain guarding work. We have perused Annexure A extract of the wage register for the year 1995. From the last. column of Annexure A it can be seen that payments have been received for rain guarding work on April 18, 1995 and the concerned workers have affixed their signatures acknowledging the receipt of the payment. This, in our opinion, conclusively proves the contention of the appellant that it was the tappers who alone were doing this work. For the year 1996 also the extract of the wage register evidencing payment for rain guarding work to the tappers on April 25, 1996, is produced and marked as Annexure B. Similarly for the year 1997 also payments have been released to the tappers who have done the rain guarding work. A copy of the extract of the wage register for the year 1997 is also produced and marked as Annexure C for identification. Annexure C would show that payments have been made on April 30, 1997 and April 16, 1997 for rain guarding work. It is submitted by Mr. Antony Dominic, learned counsel for the appellant, that the persons who have received payment for rain guarding work were all tappers and none of the casual employees have received this payment from the appellant company. It is submitted that Annexures A to C would conclusively prove the contention of the appellant that it was the tappers who were doing the work and this year also the appellant was only insisting on continuing the very same practice. A perusal of Annexures A, B and C, as rightly pointed out by the learned counsel for the appellant, would conclusively prove that the rain guarding works were all done only by the tappers and none of the casual workers have done the work for the appellant company. The learned Single Judge, as already seen, has disposed of the original petition by issuing a direction to the District Labour Officer, Pathanamthitta, to consider this matter after convening a conference of the concerned parties and to decide the issue/the dispute involved in this case. The learned Judge disposed of the original petition holding that in view of the dispute statement about the employment of causal employees, this was a matter which cannot be decided in a proceeding before this Court. On this basis the learned Judge directed the District Labour Officer to decide the question. During the pendency of the appeal the appellant has produced Annexures A to C along with C.M.P. No. 3223/1998 to show and also to substantiate that the rain guarding works were done only by the tappers and not by casual labourers. In view of the subsequent change in circumstances we permitted the appellant to file the above annexure as additional documents and accepted the same as Annexures A to C. The appellant being aggrieved by the judgment of the learned Single Judge preferred the above memorandum of appeal for setting aside the same for the grounds raised in the appeal.
5. We have heard Mr. Antony Dominic of M/s. Menon & Pai for the appellant and Mr. C. Raghavan, learned counsel appearing for respondents 5 to 9 and the Government Pleader for respondents 1 to 4. Mr. Antony Dominic submitted that the judgment of the learned Single Judge is against the facts and circumstances of the case and the learned Judge ought to have found that this was not a case where the appellant was changing an existing system, but, on the other hand, insisting only the continuation of the established practice of engaging tappers for the rain guarding work. He submitted that it has been the practice of the estate to engage only tappers of the estate who were preferred by the appellant on account of the quality of work. It is submitted farther that when the attempt to do the work was obstructed by the casual employees with the help of outsiders which led to the filing of the criminal complaints, the appellant had to approach this Court when police protection was not afforded by respondents 1 to 4 who were legally obliged to do the same. He also invited our attention to Ext. R5(a) and we have perused the same which is filed as Ext P4 along with the reply affidavit. We have perused the terms of settlement. Clause 3 of the settlement states as follows:-
"The management agrees to follow the existing practice in the neighbouring Lahai Estate in the matter of engaging workers for rain-guarding work."
On a reading of Ext. R5(a) it is seen that what was agreed to be continued was the existing practice in the Lahai Estate in the matter of engaging workers for rain-guarding work. A perusal of Ext. P5 letter sent by the neighbouring estate M/s. Harrisons Malayalam Ltd. dated June 15, 1998 would show that the practice in the Lahai Estate is one of engaging permanent employees. Therefore, the learned Judge, in our opinion ought to have found that even in Lahai Estate since casual employees are not engaged for rain-guard fixing, the appellant was justified in engaging tappers for this very work. It was the contention of the appellant as is evident from Ext. P6 settlement that the Unions had agreed to co-operate with the appellant for getting rain guard fixing work done. It was contended by the appellant that if the case of the Unions was that casual employees were doing the work for the past 25 years, the Unions would not have agreed for settlement in the nature of Ext. P6 which has not been adverted to by the learned single Judge while disposing of the Original Petition.
6. Mr. Raghavan, learned counsel appearing for the Unions, submitted that as per Ext. R5(a) settlement it was decided that fixing rain guard is to be done by the method adopted in the neighbouring Lahai Estate where this work was done by casual workers and since the work of putting rain guard on the rubber trees is being done by the casual workers in the petitioner's estate. But a reading of Ext. R5 would show the settlement reached between the parties is otherwise. The learned counsel further submitted that the intention of the management is to prevent trade union activities in the estate and therefore this O.P. is filed raising allegations against the workers. According to Mr. Raghavan the settled practice in the estate is to do the work of putting rain guard only through casual workers and the same practice is prevalent in the neighbouring estate of the petitioner company too and the averments to the contrary contained in the O.P. are wrong. He further submitted that the existence of a settlement between the management and the workers (Ext. R5(a) and pendency of the dispute and the District Labour Officer in seizin of the matter as evidenced by Exts. R5(b) and R5 (c) and therefore the prayer asked for cannot now be countenanced by this Court. Another counter affidavit was also filed in the writ appeal by the contesting respondents. They denied the allegations that the workers gheraoed the Manager and Supervisory Staff of the estate and has damaged the properties of the management. Since the complaint preferred by the management is pending before the police authorities and the same is under investigation, we are not expressing any opinion on the said argument, and it is for the police authorities to investigate into the matter and take appropriate action against the erring employees and others. The learned counsel for the casual workers also submitted that Exts. P5 and P6 have been misinterpreted by the appellant and that the documents now filed along with the writ appeal viz. the wage registers will prove that the rain- guarding work was being done only by the tappers and not by any casuals is wrong and misleading. He submitted that the perusal of the extracts of wage registers produced by the appellant casts suspicion on the case put forward by the appellant. We are unable to agree or accept the said contention, We have perused the exhibits, particularly Exts. P5, P6 and the additional documents filed along with C.M.P. 3223/1998. A perusal of the same would show that the wage registers have been maintained by the management in the regular course of its business. All the tappers and tapping supervisors who received the salary for rain-guarding work have affixed their signatures in the place marked for the same. And likewise Annexures B and C would also prove that they were maintained in the regular course of business and there cannot be any suspicion over the genuineness of the documents. The documents now filed along with C.M.P, 3223/ 1998 conclusively prove that the rain-guarding work was being done only by the tappers and not by any casuals as alleged by the casual workers.
7. As already noticed the prayer in the original petition is to issue direction to respondents 1 to 4 who are police authorities to afford adequate and effective police protection to the appellant and its executives and other staff in order to get the rain guarding work done by the tappers of the Perinad Estate, and for further allied reliefs. We are of the opinion that in the facts and circumstances of the case, respondents 1 to 4 have a legal duty to afford police protection when the unions have caused obstruction to the work done by the tappers of the estate and when police protection was denied to the appellant, they are justified in filing the writ petition and by seeking necessary direction. Such a matter, in our opinion, need not go before the District Labour Officer as is done by the learned Single Judge. As is evident from Exts. P5 and P6 the practice of engaging tappers for rain-guarding work was the one followed in the estate. Mr. Raghavan submitted that no direction should be given to the police as prayed for by the appellant because no public interest is involved and what is involved is only the private interest of the appellant. On the other hand, Mr. Antony Dominic, learned Counsel for the appellant, submitted that it is the legal duty on the part of the police authorities to give adequate and necessary police protection when the property of a private company is in danger.
8. We have given our anxious consideration to the rival submissions made by both the learned counsel. We are of the firm view that the writ petition and the writ appeal should be allowed and the relief claimed by the appellant should be granted. Admittedly, the claim of the appellant is that the rain-guarding work is being done by the tappers of the estate. It is the claim of the respondent Unions in their counter which was repeated before us at the time of the argument that the said work was done only by the casual workers. We have already held that the contention of the respondent-Unions is not acceptable in view of the exhibits and annexures A, B and C filed along with C.M.P. 3223 of 1998 and other documents. In the absence of any legal prohibition for engaging workers of their choice, or in the absence of an agreement between the parties under which the appellant has restricted their choice of workmen in any particular fashion, in our opinion, the appellant has a legal right to engage workmen of their choice for carrying on their business. It is not open to the respondent-unions to prevent the appellant from exercising their fundamental right to carry on their business or trade. It is the duty of this Court to ensure that the citizen of this country is allowed to exercise his fundamental rights and it is also the duty of the law enforcing agencies like the police personnel to give protection to a citizen carrying on his lawful trade or business. If this is not done, there would be no useful purpose served by the existence of Courts and law enforcing agencies. Just as the workers are entitled to protection of their legal rights by Courts of law, the employers are also equally entitled to protection of their fundamental right to carry on their lawful trade or business. In our opinion it is not open to the respondents-unions to take the law in their own hands and obstruct the Permanent workers of the appellant from discharging their duties or prevent the appellant from doing the rain guarding work. Sufficient safeguards are provided under the Industrial Disputes Act to prevent exploitation of workers by employers. It is strange to find that one set of workers claimed right to get employment on the basis of some practice and preventing the employer from engaging labour of their choice. If the claim of the labour is allowed, then a day will come when a citizen of this country has to seek his employment in his own village, taluk or district. Such a claim would run counter to the rights guaranteed under the Constitution of India. Therefore, the right now claimed by the respondents on the basis of some practice cannot be countenanced at all.
9. The Supreme Court in Shri Anadi Mukta Sadgum S.M.V.S.J.M.S. Trust v. V. R. Rudani (1989-II-LLJ-324) has considered in extenso that of the law relating to mandamus in India. The Supreme Court has noted striking departure of Indian law from the English law in the light of the language used in Article 226 of the Constitution of India. The following observation of the Supreme Court is of relevance for the present cases at p.329:-
"There, however, the prerogative writ of mandamus confined only to public authorities to compel performance of public duty. The 'public authority' for them means every body which is created by statute-and whose powers and duties are defined by statute. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all public authorities. But there is no such limitation for our High Courts to issue the writ in the nature of mandamus'."
It has been further observed in paragraph 22 of the said decision as follows: -
"The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water tight 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 Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition."
10. It is clear from the above pronouncement that a writ of mandamus should be issued to police authorities to enforce law. It is needless to say that duties imposed on the police authorities are to prevent the commission of crimes including the commission of cognizable offences. It is immaterial whether such crime is committed against an individual or public at large. In this view of ours it is necessary for us to grant the relief to the appellant because he is complaining of the inaction on the part of the police authorities to prevent the respondents from committing offences and also rescue the appellant from the clutches of the contesting respondents who have taken law in their own hands and are preventing the management from exercising their fundamental right to engage their own men and carry on a lawful trade or business as above. For the foregoing reasons the writ petition and the writ appeal are allowed. A mandamus is issued to respondents 1 to 4 to provide adequate police protection to the appellant, their employees and servants in the course of their lawful carrying on of business without any obstruction from the respondents-unions or members of the respondents-unions or any other persons claiming through or under them. We make it clear that the direction given above is confined only to the rain-guarding work in the estate concerned and not with reference to any other work for which the casual labourers are engaged.
The writ appeal is disposed of as above. There will be no order as to costs.