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 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 WP(C).No. 23752 of 2008(C) -------------------------------------- PETITIONER(S): --------------------- 1. M/S. AFCONS INFRASTRUCTURE LIMITED. PETRONET LNG PROJECT, PUTHUVYPEEN PO NEAR LIGHT HOUSE, KOCHI 682 508, REPRESENTED BY ITS MANAGER-EXECUTION MR.V.V.JAIDEV 2. M/S. V & T ASSOCIATES AP 3/381B, P.O.KANJIRAMATOM-682315 ERNAKULAM,REPRESENTED BY ITS PARTNER SHRI JUSTIN THOMAS BY ADV. SRI.S.EASWARAN RESPONDENT(S): ------------------------- 1. THE CIRCLE INSPECTOR OF POLICE NJARACKAL. 2. ERNAKULAM JILLA KETTIDA NIRMANA THOZHILALI UNION (CITU), 160/86 CANNON SHED ROAD, ERNAKULAM, KOCHI- 682 011,REPRESENTED BY ITS SECRETARY. 3. THE DISTRICT CONSTRUCTION WORKERS (INTUC) KALABHAVAN ROAD, KOCHI-18, REPRESENTED BY ITS SECRETARY. 4. ERNAKULAM JILLA NIRMANA THOZHILALI SANGH (BMS) I.S.PRESS ROAD, KOCHI-18 REPRESENTED BY ITS JILLA SECRETARY. 5. COCHIN THURAMUGHA THOZHILALI UNION P.B.NO.183, KOCHI-3, REPRESENTED BY ITS VICE PRESIDENT WP(C).No. 23752 of 2008(C) 6. ERNAKULAM DISTRICT CONSTORUCITON AND GENERAL WORKERS UNION, REG.NO. 159/85 (AFFILIATED TO AITUC & WFTU) C.S.ROAD, T.U.HOUSE, KOCHI -682 011, REPRESENTED BY ITS GENERAL SECRETARY SHRI.T.N.DAS. 7. ERNAKULAM DISRICT LABOUR CONGRESS, REG.NO.7/01/2004, CENTRAL COMMITTEE OFFICE, NJARAKKAL P.O, KOCHI-682 505, REPRESENTED BY ITS GENERAL SECRETARY C.D.DESIKAN. 8. KERALA SAMSTHANA KETTIDA NIRMANA THOZHILALI UNION (TUCI), REG.NO.12-22/90, MARUTI VILAS, C.S.ROAD, ERNAKULAM, REPRESENTED BY GENERAL SECRETARY SHRI P.A. JIRAR. SR. GOVERNMENT PLEADER SRI.BENJAMIN PAUL FOR R1 ADV.SRI.T.A.SHAJI FOR R2 SRI.C.S.AJITH PRAKASH FOR R3 SRI.T.D.SALIM FOR R3 SRI.PAUL C THOMAS FOR R3 SRI.K.SHRIHARI RAO FOR R4 SMT.N.SHOBHA FOR R4 SRI.B.N.SHIVSANKAR FOR R5 SRI.MAJNU KOMATH FOR R6 SMT.T.B.MINI FOR R8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23752 of 2008(C) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LETTER OF INTENT DATED 21 FEBRUARY 2008 ISSUED TO THE 1ST PETITIONER BY IHI. EXT.P2: COPY OF THE LETTER OF INTENT DATED 15/07/2008 ISSUED TO THE 2ND PETITIONER BY THE 1ST PETITIONER. EXT.P3: COPY OF THE ORDER DATED 4TH JUNE, 2008 IN W.P.(C). NO. 15580 OF 2008. EXT.P4: COPY OF THE PETITION DATED 31/07/2008 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P5: COPY OF THE PETITION DATED 31/07/2008 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P6: COPY OF THE MUSTER ROLLMAINTAINED BY THE 2ND PETITIONER. EXT.P7: COPY OF THE MUSTER ROLL MAINTAINED BY THE 1ST PETITIONER FOR THE MONTH OF OCTOBER, 2008. EXT.P8: COPY OF THE MUSTER ROLL FOR THE MONTHS OF JUNE AND JULY 2008 MAINTAINED BY THE 1ST PETITIONER. RESPONDENT'S EXHIBITS: EXT.R8(a): COPY OF THE MEMORANDUM OF SETTLEMENT WITH PETITIONER. EXT.R8(b): COPY OF THE DISTRICT COLLECTORS ORDER TO GIVE WORK TO RESPONDENT IN LNG SITE. EXT.R4(a): COPY OF THE AGREEMENT MADE BETWEEN APS AND RESPONDENTS 2 AND 3 UNIONS. EXT.R4(b): COPY OF THE AGREEMENT MADE BETWEEN APS AND 2ND, 3RD, 4TH AND OTHER UNIONS. EXT.R4(c): COPY OF THE ORDER DATED 08/08/2008 OF THE DISTRICT LABOUR OFFICER, ERNAKULAM. EXT.R4(d): COPY OF THE AGREEMENT ENTERED BY THE 1ST PETITIONER AND OTHER UNIONS INCLUDING THE 4TH RESPONDENT. EXT.R3(a): COPY OF THE SETTEMENT EXECUTED BETWEEN THE UNION AND THE MANAGEMENT FOR THE PERIOD UPTO 31/03/2009. EXT.R3(b): COPY OF THE SETTLEMENT BY THE RESPONDENT UNION WITH THE APS FOR THE YEAR 1999.. WP(C).No. 23752 of 2008(C) EXT.R3(c): COPY OF THE SETTLEMENT BY THE RESPONDENT UNION WITH THE APS FOR THE YEAR 2000. EXT.R3(d): COPY OF THE SETTLEMENT BY THE RESPONDENT UNION WITH THE APS FOR THE YEAR 2001. EXT.R3(e): COPY OF THE SETTLEMENT BY THE RESPONDENT UNION WITH THE APS FOR THE YEAR 2007-2008. //TRUE COPY// P.S. TO JUDGE Rs/ K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== W.P.(C)NO. 23752 OF 2008 ============================ DATED THIS THE 23rd DAY OF OCTOBER 2008 JUDGMENT Balakrishnan Nair,J. The petitioners have approached this Court, seeking police protection at their work site, for doing the piling work awarded by the first petitioner to the second petitioner. The first petitioner is the main contractor and the second petitioner is the sub-contractor. The 2nd petitioner is actually executing the work at the site at Njarakkal. This Court on 11-8-2008 passed an interim order in this writ petition, which reads as follows: “The 1st petitioner is a Company, which has been awarded the work of constructing two LNG Storage Tanks at Kochi by their principals as per Ext.P1. The 2nd petitioner is a sub-contractor of the 1st petitioner, which has been awarded the piling work in connection with the work awarded to the 1st petitioner. When the 2nd petitioner tried to start the work, the respondents 4 to 8 entered the work site and caused obstruction. Though the 2nd petitioner has WPC.23752/2008 -2- got freedom to engage workmen of its choice, it was constrained to prefer the workmen belonging to the respondents 2 and 3. If their workmen are not engaged, those unions will cause obstruction. In view of the stand of the respondents 2 and 3, the 2nd petitioner cannot engage the workmen belonging to the respondents 4 to 8. Since, the works are to be completed within a time-frame, the petitioners moved the police, seeking necessary protection, by filing Exts.P4 and P5 representations. But, the police did not take any effective action. Hence, this writ petition, seeking the following relief: ' a) issue a writ of mandamus or other appropriate writs, directions or orders compelling the 1st respondent to afford adequate and sufficient police protection to the petitioners to commence and complete work undertaken by them as per Exts.P1 and P2 without any interference from the members of respondents 4 to 8 as expeditiously as possible at any rate within a time to be specified by this Hon'ble Court.' 2.Though notice was served by special messenger, no one appeared for respondents 2, 3, 5 and 7. The respondents 4, 6 and 8 appeared through counsel and submitted that this Court may not order protection to the petitioners, to enable them to engage exclusively the workmen belonging to the respondents 2 and 3. They say WPC.23752/2008 -3- that the petitioners should genuinely exercise their discretion to engage workmen of their choice and employ the workmen available in the locality, so that, all persons who are desirous of getting work, will get it irrespective of their Union affiliation. 3. The learned Government Pleader appearing for the 1st respondent submitted that this is a labour dispute and the same has to be settled by moving the competent labour authority and that the police cannot interfere in the said dispute. 4. The learned counsel for the petitioners relied on Ext.P3 interim order passed by us in another writ petition. He also pointed out that in several other cases this Court has passed interim orders. So, similar orders may be passed in this case also, it is submitted. 5. We notice that the association of piling contractors entered into an agreement in advance with some of the Unions, agreeing to engage the workmen belonging to those Unions only for work in the work site. In that process, the Unions are permitting themselves to be degraded as recruiting agents. In fact, the employer should exercise his freedom to engage workmen of his choice. The Unions should canvass those workmen engaged by the contractor and enroll them in their Trade Union. In this case, we find that the cart is put in front of the horse. The workmen are selected in advance by some Trade Unions and they are being supplied to the contractor and other Trade Unions are denied the said WPC.23752/2008 -4- right. Therefore, they demur and create problems in the work site and the contractors are driven to this Court for police protection. 6. We feel that this Court should not exercise its discretionary jurisdiction in favour of the contractors, in such cases. It is true, we have exercised our discretion in some cases earlier. But, we feel that such orders could not be passed again. If there is a work site and the work is going to begin on a day, the contractor should normally engage the workmen, who are available in the locality for doing the work. If the number of workmen present are more than his requirement, he may find some equitable method like drawing lots for engaging those workmen, or he may engage all the workmen by rotation, so that, all of them will get work for a few days. The contractor has to do this fairly and he should not engage workmen nominated by some Unions. So, we feel that if we order police protection, it should be subject to a condition that the petitioners should engage workmen of their choice in the real sense and without being dictated in this matter, by any of the Trade Unions. Of course, specialised workmen in piling work can be brought by the petitioners. But, for doing the other works which can be done using the ordinary workmen, the petitioners may engage workmen from among those persons, who assemble in the work site without being guided by the dictates of any Trade Unions, in the matter of recruitment. The workmen so engaged by the petitioners can join any Union or they WPC.23752/2008 -5- can remain without affiliation to any Trade Union. Formation of a syndicate of the Unions for the purpose of supply of workmen and denying employment to other workmen, who do not have any union membership, do not go with the democratic traditions of our State. So, the petitioners may announce the commencement of work at the site and from among the workmen who assemble there, they may recruit workmen in a fair and transparent manner, subject to their requirement and engage them. If anybody is causing obstruction, the petitioners may inform the 1st respondent. In that event, the 1st respondent shall remove the obstruction and allow the petitioners to do the work using the workmen of their choice. 7. It is made clear that the workmen who are regularly employed by the petitioners and whose names find a place in muster roll, can be engaged by them. For additional requirement of workmen, the above direction issued by us will govern.” 2. After the passing of the above order, respondents 2 and 3 appeared and filed counter affidavits denying the allegations against them. After hearing both sides, we passed another order on 3-10-2008. The said order reads as follows: “This Court directed the petitioners to publish copy of the muster rolls of their employees so that there may not be any dispute in future regarding the permanent employees, the petitioners propose to engage in their WPC.23752/2008 -6- work sites. The respondents point out that they have not been furnished with any copy of the muster roll and further they do not actually reflect the permanent workmen of the employers concerned. But they contain only the names of persons sponsored by two Unions. 2. The petitioners are directed to produce the copies of the muster rolls maintained by them along with appropriate affidavits before this Court with copy to the other side. The petitioners may file reply affidavit to the counter affidavits filed by the contesting respondents.” 2. As directed by this Court, the second petitioner has produced Ext.P7 muster roll containing the names of workmen engaged by it for test piling work during the month of October. It has also produced Ext.P8 muster roll containing the names of workmen, who were engaged by it in another work site during the months of June and July 2008. The petitioners submit, at present the workmen from Ext.P7 are engaged for test piling work. The other works will commence from November 2008, for which the workmen from Ext.P8 muster roll will be engaged. 3. The above submission made by the petitioners will give some measure of security to the workmen named in Exts.P7 WPC.23752/2008 -7- and P8 muster rolls. The petitioners are bound to engage the workmen irrespective of their native state, caste, religion or political faith. If anybody causes obstruction to their workmen on the ground that they have deserted their Union or on any other ground, the petitioners can move the first respondent. In that event the first respondent shall remove the obstruction and render necessary protection to engage workmen named in Exts.P7 and P8. The obstructed workmen can also approach the police. In that event the police shall render necessary protection to them. 4. But, the learned counsel for the workmen pointed out that sufficient details are not there in Exts.P7 and P8, to identify the workmen. Some names, only, are there and fresh persons can be substituted in the place of the persons named in Exts.P7 and P8, in the absence of necessary particulars, it is submitted. Such disputes, the concerned workmen/Union can raise before the District Labour Officer, Ernakulam. In that event the said officer shall hear the petitioners and the Trade Unions, who are parties to this writ petition, and render a decision within two weeks from the date of receipt of the complaint. The decision of WPC.23752/2008 -8- the District Labour Officer shall be implemented by the petitioners and continued police protection will depend upon the implementation of the order of the District Labour Officer. The learned counsel for the petitioners pointed out that earlier, when the matter was raised before the District Labour Officer, he issued a communication, a copy of which is produced as Ext.R4 (c). In the said communication, the District Labour Officer stated that he has no power to decide the dispute. Normally, the District Labour Officer has only power to conciliate under the Industrial Disputes Act. But, in this case, by the consent of parties, this Court is authorising the District Labour Officer to take a decision. The said Officer can decide the dispute regarding the engagement of workmen from Exts.P7 and P8 muster rolls, raised by the parties, after hearing both sides. The writ petition is disposed of as above. K. BALAKRISHNAN NAIR, JUDGE M.C. HARI RANI, JUDGE ks. WPC.23752/2008 -9-