IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 WP(C).No. 14398 of 2008(L) ---------------------------------------- PETITIONERS: ---------------------- 1. M/S. HOTEL AMIRTHA LTD., THYCAUD, THIRUVANANTHAPURAM, REPRESENTED BY ITS DIRECTOR SRI.S.HARI MURALI. 2. S.HARI MURALI, SON OF SRIDHARA PANICKER, HINDU, AGED 52, RESIDING AT BRINDAVAN, THYCAUD, THIRUVANANTHAPURAM. BY ADV. SRI.M.RAMASWAMY PILLAI SRI.P.M.JOSEPH RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. COMMISSIONER OF POLICE, OFFICE OF THE CITY COMMISSIONER, THYCAUD, THIRUVANANTHAPURAM. 3. CIRCLE INSPECTOR OF POLICE, THAMPANOOR POLICE STATION, THAMPANOOR, THIRUVANANTHAPURAM. 4. SUB INSPECTOR OF POLICE, THAMPANOOR POLICE STATION, THAMPANOOR, THIRUVANANTHAPURAM. 5. THIRUVANANTHAPURAM JILLA HOTEL MAZDOOR SANGAM (BMS), REG. NO.55/82, FORT, THIRUVANANTHAPURAM - 23, REPRESENTED BY ITS GENERAL SECRETARY. 6. S.RAJENDRAN, RAJA BHAVAN, VAZHAMUTTAM EAST, MULLASSERI, PATHANAMTHITTA, NOW AVAILABLE AT THE ABOVE ADDRESS. BY SR. GOVERNMENT PLEADER SRI. BENJAMIN PAUL -R1 TO R4 BY ADV. SRI.N.NAGARESH - R5 & R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.14398/2008 L APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SUSPENSION NOTICE DTD. 17/03/2008. EXT.P2: COPY OF THE CAHRGE MEMO ISSUED TO THE SIXTH RESPONDENT ON 04/04/08. EXT.P3: COPY OF LETTER TO THE FIFTH RESPONDENT DTD. 4/4/08. EXT.P4: COPY OF THE NOTICE DTD. 09/04/2008. EXT.P5: COPY OF REPLY LETTER TO THE SIXTH RESPONDENT ISSUED BY THE SECOND PETITIONER. EXT.P6: COPY OF THE ENQUIRY ORDER DTD. 12/04/2008. EXT.P7: COPY OF THE PETITION SUBMITTED TO THE 3RD RESPONDENT BY THE FIRST PETITIONER DTD. 26/04/2008. EXT.P8: COPY OF THE PETITION SUBMITTED TO THE 4TH RESPONDENT BY THE 1ST PETITIONER DTD. 26/04/2008. EXT.P9 SERIES:COPY OF THE PHOTOGRAPHS EXHIBITED INSIDE THE PREMISES OF THE PETITIONER HOTEL. RESPONDENT'S EXHIBITS: EXT.R5(A); COPY OF THE MEMORANDUM OF SETTLEMENT DTD. 18/07/2007 SIGNED BY THE PETITIONER. EXT.R5(B): COPY OF CERTIFICATE OF SICKNESS CLAIM DTD. 22/03/2007 WHICH WAS DENIED BY ESI AUTHORITIES. EXT.R5(C): COPY OF THE STATEMENT OF PF ACCOUNT OF MR.M.K.OUSEPH. EXT.R5(D): COPY OF COMPLAINT DTD. 15/05/2006 SUBMITTED TO THE REGIONAL PF COMMISSIONER. EXT.R5(E): COPY OF THE LETTER DTD. 1/03/2008 SUBMITTED TO THE 1ST PETITIONER. EXT.R5(F): COPY OF LETTER DTD. 1/04/2008 SUBMITTED TO THE 1ST PETITIONER. EXT.R5(G): COPY OF NOTICE OF CONCILIATION NO.LR(1)1917/08 DTD. 30/04/2008 SENT BY DLO, THIRUVANANTHAPURAM. /TRUE COPY/ P.S.TO JUDGE Kss K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== W.P.(C)NO. 14398 OF 2008 ============================ DATED THIS THE 12th DAY OF JUNE 2008 JUDGMENT Balakrishnan Nair,J. The first petitioner is a company which is running a hotel in Thiruvananthapuram. The second petitioner is its Director. The 5th respondent is a Trade Union representing the workmen of the said hotel. The 6th respondent is a worker who has been placed under suspension, pending enquiry into the memo of charges issued to him . The 6th respondent, who is also an activist of the 5th respondent union, approached the 5th respondent union to redress his grievance. The petitioner submits, the Union espousing the cause of the 6th respondent has issued Ext.P5 strike notice. Though the demands raised in Ext.P5 include those like non-payment of P.F. and E.S.I. contribution etc., the Union mainly pressed the demand for withdrawal of disciplinary action against the 6th respondent. Since the WPC.14398/2008 -2- negotiations between the parties failed, the workmen has started a strike from 24-4-2008. Thereafter they are causing obstruction to the customers' ingress and egress, to and from the hotel and flags and posters are exhibited to give an impression that all the workers are on strike and the hotel is not functioning, so that the customers may go way. In the above background, the petitioners moved the police for necessary protection for the smooth functioning of the hotel. Since the police did not interfer in the matter, this writ petition was filed seeking the following reliefs: “i) That to grant the writ of mandamus or some other writ or order or direction to the respondent 3 and 4 to provide sufficient and effective police protection to the life of petitioners and members of family, co-workers, and customers and their property. ii)that, to grant the writ of mandamus or some other writ or order or direction to the respondents 3 and 4 to remove the play cards(placards) and other posters mentioning regarding illegal strikes for the sake of WPC.14398/2008 -3- creating intention (impression)to the customers that the Hotel is closed. iii) that to grant the writ of mandamus or some other writ or order or direction to the respondents 5 to 6 not to conduct any demonstration in front of the hotel premises at least 300 metres away from the hotel. iv) that to grant the writ of mandamus or some other writ or order or direction to the respondents 5 and 6 and declare that the strike organised by the respondents 5 and 6 against the petitioners are illegal.” 2. The learned Government Pleader, upon instructions, submitted that the workmen are staging peaceful demonstration without indulging in any obstruction or criminal activities affecting the functioning of the hotel. 3. The 5th and 6th respondents have filed a counter affidavit in which it is stated that the demand for payment of E.S.I. and P.F. contribution is not a new demand raised to resist the suspension of the 6th respondent made on 8-3-2008. The WPC.14398/2008 -4- demand concerning non-payment of the statutory contributions was pending since 2006. That will be evident from Ext.R5(d). It is also submitted that on the complaint made by the Union, the P.F. authorities have inspected the hotel in the first week of March. The same provoked the management . Thinking that the 6th respondent was behind the same, he was placed under suspension. So, the Union was constrained to resort to strike from 24-4-2008. The total strength of the workmen in the hotel is 21 and 16 out of them are members of the 5th respondent and they are striking work, it is submitted. It is also submitted that the Union have no intention to take law into their hands and to cause any physical obstruction to the customers or the loyal workmen . 4. The petitioners have filed a reply affidavit dealing with the averments in the counter affidavit of respondents five and six. 5. Strike means cessation of work in concert by the workmen. The same will definitely cause in-convenience to the management. The striking workmen have no right to obstruct WPC.14398/2008 -5- the loyal workmen or the customers of the hotel. Loyal workmen means those workmen who are on the rolls of the company as on the date of commencement of the strike,i.e. 24-4-2008. The Management have no right to recruit new workers in the place of striking workmen. If the striking workmen or their supporters cause obstruction to the loyal workmen coming to the hotel or the customers, the petitioners may inform the 4th respondent and in that event the 4th respondent shall remove the obstruction. The police shall not interfere with the peaceful demonstrations or such other legitimate activities undertaken by the 5th respondent for pressing the charter demands submitted by them. The writ petition is disposed of as above. K. BALAKRISHNAN NAIR, JUDGE M.C. HARI RANI ks. JUDGE