IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 WP(C).No. 12823 of 2011(C) -------------------------- PETITIONER: --------------- T.D.JOY, PWD CONTRACTOR, THACHIL KANNAYI HOUSE, PUTHENCHIRA EAST P.O., MALA VIA., THRISSUR DISTRICT. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA RESPONDENT(S): --------------- 1. THE SUPERINTENDENT OF POLICE, THRISSUR DISTRICT, AYYANTHOLE P.O., THRISSUR-680 003. 2. THE DEPUTY SUPERINTENDENT OF POLICE, IRINJALAKUDA, THRISSUR-680 121. 3. THE CIRCLE INSPECTOR OF POLICE, MALA, THRISSUR-680 732. 4. THE SUB INSPECTOR, MALA POLICE STATION, THRISSUR-680 732. 5. ASSISTANT EXECUTIVE ENGINEER, PWD, ROADS SUB DIVISION, KODUNGALLUR, THRISSUR-680 664. 6. MALA AREA ROAD AND BUILDING WORKERS' UNION (CITU), ASHTAMICHIRA, THRISSUR-680 731, REPRESENTED BY ITS SECRETARY. R1 TO R5 BY GOVT. PLEADER SMT. C.M. CHARISMA R6 BY ADV. SRI.KOSHY GEORGE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12823/ 2011 APPENDIX P ETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE SELECTION NOTICE NO.D3.1101/10 DATED 1.1.2011 ISSUED BY THE 5TH RESPONDNET. EXTP2 : COPY OF THE SELECTION NOTICE NO.D4.1088/10 DATED 30.12.2010 ISSUED BY THE 5TH RESPONDENT. EXT.P3 : COPY OF THE SELECTION NOTICE NO.D3.1100/10 DATED 1.1.2011 ISSUED BY THE 5TH RESPONDENT. EXT.P4 : COPY OF THE SELECTION NOTICE NO.D4.1081/10 DATED 30.12.2010 ISSUED BY THE 5TH RESPONDENT. EXT.P5 : COPY OF THE SELECTION NOTICE NO.D2.1083/10 DATED 30.12.2010 ISSUED BY THE 5TH RESPONDENT. EXT.P6 : COPY OF THE SELECTION NOTICE NO.D5.1099/10 DATED 30.12.2010 ISSUED BY THE 5TH RESPONDENT. EXT.P7 : COPY OF THE RECEIPT NO.162/DPTN/M1/11 DATED 27.04.2011 ISSUED BY THE 4TH RESPONDENT. EXT.P8 : COPY OF THE REPRESENTATION DATED 27.04.2011 SENT BY THE PETITIONER TO THE RESPONDENTS 1 TO 4. EXT.P9 : PHOTOCOPY OF THE POSTAL RECEIPTS ISSUED TO THE PETITIONER PURSUANT TO THE SENDING OF EXHIBIT P8 REPRESENTATION TO THE RESPONDENTS 1 TO 4. RESPONDENT'S EXHIBITS: EXT.R6(a) : COPY OF IDENTITY CARD ISSUED TO ONE SUCH WORKER. EXT.R6(b) : COPY OF AGREEMENT FOR THE PERIOD 2009-10. EXT.R6(c) : COPY OF AGREEMENT FOR THE PERIOD 2010-11 DATED 3-4-2010. EXT.R6(d) : COPY OF AGREEMENT DATED 17.04.2011 EXT.R6(E) : COPY OF ONE SUCH REQUEST MADE BY A CONTRACTOR ON 19.01.2011 EXT.R6(f) : COPY OF REQUEST MADE BY ANOTHER CONTRACTOR ON 31.01.2011. EXT.R6(g) : COPY OF REQUEST OF ANOTHER CONTRACTOR ON 5.01.2010 EXT.R6(h) : COPY OF JUDGMENT IN W.P.(C) NO.7249 OF 2010(E) DATED 17.03.2011. //TRUE COPY// P.A. TO JUDGE smvd R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- WPC No.12823 of 2011 ------------------------------------------- Dated this the 22nd June, 2011 JUDGMENT Basant, J. The petitioner has come to this Court seeking issue of directions under Article 226 of the Constitution of India to respondents 1 to 4 to afford police protection to the petitioner to get the work of road repair done by workmen of his choice employed by him against illegal obstruction that is raised by respondent No.6. 2. The petitioner is a PWD C-class contractor. An item of work has been allotted to him. He has to face the constraints of time prescribed in the contract. He therefore has to expeditiously complete the work. He is being illegally obstructed from carrying out the work by the members of the sixth respondent union. According to the petitioner, he is not the member of any association of PC No.12823/2011 2 employers. He has not agreed with any one to provide employment for the workers of the sixth respondent. In these circumstances, the sixth respondent or workers under the sixth respondent have no right to cause any obstruction to the work carried on by the petitioner. Appropriate directions may in these circumstances be issued, it is prayed. 3. Respondent No.6 has entered appearance. The sixth respondent contends that in the light of Ext.R6(c) and R6(d) agreements, all contractors are bound to employ workmen of the sixth respondent alone as workmen. The attempt of the petitioner is to contend that he is not the member of the Kerala Contractors' Association and that he is not bound by Exts.R6(c) and (d). This is not permissible. This petition may in these circumstances be dismissed, it is prayed. 4. We turned to the learned Government Pleader for submissions. The learned Government Pleader submits that the petitioner is asserting that he is not bound by Ext.R6(d) agreement and in these circumstances, disputes have arisen between the parties. The police had advised PC No.12823/2011 3 the parties to get their disputes resolved by conciliation before the labour authorities. Neither party has gone to the labour authorities now. If so directed by the Court, police protection shall be afforded to the petitioner, submits the learned Government Pleader. The learned Government Pleader further points out that the Vacation Bench before which the matter came up had granted an interim order directing respondents 1 to 4 to afford adequate, sufficient and effective protection for the execution of the balance works involved in Exts.P4, P5 and P6 by making use of the employees of the petitioner named in Ext.P8 against any obstruction, threat or interference by the sixth respondent and persons acting under him. The learned Government Pleader submits that the said interim order of protection is being scrupulously enforced. 5. We have considered all the relevant inputs. The sixth respondent founds his claim on Ext.R6(d). That agreement is in force from 1.4.2011 to 31.3.2012. But, we are unable to find any effective reply/response to the contention of the petitioner that he is not a member of the PC No.12823/2011 4 Kerala Contractors' Association. Even the sixth respondent does not have a specific case that the petitioner is a member of the said Association. 6. There is, in these circumstances, substance in the contention of the petitioner that he is not bound by Ext.R6(d). A further contention is raised that even going by Ext.R6(d), there is no stipulation of any exclusive right for the sixth respondent to provide workmen for the contractors. Ext.R6(d) even if assumed to be binding and valid does not oblige the petitioner or other contractors to exclusively employ members of the sixth respondent. The language of Ext.R6(d) does not convey any such obligation/duty. No better material is produced. 7. We have considered all the relevant inputs. We find merit in the contentions raised by the petitioner. Ext.R6(d) does not, according to us, contain a specific stipulation that members of the sixth respondent alone can be employed by the contractor while executing the work. We are in these circumstances satisfied that the prayer of the petitioner is justified. If the parties have any disputes, needless to say, their option to move the labour authorities to initiate conciliation proceedings shall remain unfettered by the disposal of this writ petition. PC No.12823/2011 5 8. In the result, a) This writ petition is allowed. b) The interim direction issued on 3.5.2011 is made absolute. Respondents 2 to 4 are directed to afford adequate police protection for the petitioner to carry out the work in accordance with law employing his own workmen without any obstruction from the sixth respondent and members of the sixth respondent. sd/- R.BASANT JUDGE sd/- K.SURENDRA MOHAN JUDGE css/ true copy P.S.TO JUDGE PC No.12823/2011 6 R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- WPC No.12823 of 2011 ------------------------------------------- PC No.12823/2011 7 Dated this the 17th June, 2011 ORDER Basant, J. Respondent No.6 has entered appearance. Counter affidavit has already been filed. The learned counsel for the sixth respondent presses for an early disposal. Counsel for the petitioner prays for time. Reply affidavit, if any, must be filed on 20.6.2011 with notice to the counsel for the sixth respondent. Call on 21.6.2011 finally for hearing and disposal. R.BASANT JUDGE K.SURENDRA MOHAN JUDGE css/