IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 WP(C).No. 7249 of 2010(E) ------------------------------------- PETITIONER: ------------------- T.D.DAVIS, GOVERNMENT CONTRACTOR, THACHIL KANNAYI HOUSE, PUTHENCHIRA EAST.P.O, MALA VIA., THRISSUR DISTRICT. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA. RESPONDENTS: ------------------------ 1. THE DEPUTY SUPERINTENDENT OF POLICE, IRINJALAKUDA, THRISSUR DISTRICT. 2. THE CIRCLE INSPECTOR OF POLICE, MALA, THRISSUR DISTRICT. 3. THE SUB INSPECTOR OF POLICE, MALA POLICE STATION, THRISSUR DISTRICT. 4. THE ASSISTANT EXECUTIVE ENGINEER, P.W.D ROADS SUBDIVISION, KODUNGALLUR. 5. MALA AREA ROAD AND BUILDING WORKERS' UNION (CITU), ASHTAMICHIRA, THRISSUR DISTRICT, REP.BY ITS SECRETARY, N.G.LOHIDAKSHAN. 6. A.A.ESMAIL, PRESIDENT, MALA AREA ROAD AND BUILDING WORKERS' UNION (CITU) ASHTAMICHIRA, THRISSUR DISTRICT. R1 TO R4 BY GOVT. PLEADER, R5 BY ADV. SRI.KOSHY GEORGE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- W.P.(C) No. 7249 of 2010-E ------------------------------------------------- Dated this the 17th day of March, 2011 JUDGMENT Basant,J. This petition for police protection under Art.226 of the Constitution was filed by the petitioner on 5/3/2010. It was admitted on the same day and notice was ordered. On 8/3/2010, when the matter came up for hearing, an interim direction was issued “directing respondents 1 to 3 to afford adequate and effective police protection to the petitioner to carry out maintenance/improvement works to the roads undertaken by him by engaging his own employees without interference from respondents 5 and 6 and their henchmen till the next date of posting” i.e., 17/3/2010. 2. By the time the matter came up for hearing on 17/3/2010, the entire work was undertaken and completed with W.P.(C) No. 7249 of 2010 -: 2 :- the aid of police as per the interim order and the petition became unnecessary and infructuous. The learned counsel for the petitioner, in these circumstances, prayed that the petition may now be dismissed as unnecessary and infructuous in view of the fact that the work was carried out and completed on the strength of the interim order dated 8/3/2010. 3. But the learned counsel for the 5th respondent wanted this Court to look into the matter in greater detail. According to the 5th respondent, the petitioner is guilty of gross mala fides. The petitioner had misled the court. The petitioner had suppressed the relevant facts. The petitioner had thus secured an interim order without revealing all necessary details. The interim order virtually resolved the controversy. The 5th respondent was thereby put to great inconvenience and loss. The learned counsel for the 5th respondent, in these circumstances, prayed that the matter may be looked into in detail. The mala fide conduct of the petitioner may be identified and recorded and such conduct may be frowned upon. The learned counsel for the 5th respondent submitted fairly that the 5th respondent does not want to claim any costs in this matter; but appropriate costs may be awarded to the High Court Legal W.P.(C) No. 7249 of 2010 -: 3 :- Service Committee to express the displeasure of the court against the course adopted by the petitioner. 4. The Bench which granted the interim order wanted the matter to be considered in detail. The matter was heard and orders were reserved. But subsequently the matter was re- opened. It was observed that the matter need not be treated as part heard and it is accordingly the matter has come up before us for consideration. 5. The petitioner has filed this petition asserting a right to employ his own workmen to undertake the road repair/ maintenance work which was awarded to him under Ext.P1. According to him, on an earlier occasion he along with other Government contractors had come before this Court and Ext.P2 interim order and Ext.P3 final judgment were passed in favour of all the petitioners in those proceedings including the petitioner herein. He raised a grievance that the 5th respondent - the Union, the 6th respondent - the President of the Union and the workmen of the Union were raising illegal and unjustified obstruction to the work which the petitioner was obliged to carry on on the strength of Ext.P1 work order. 6. The learned counsel for the 5th respondent submits that W.P.(C) No. 7249 of 2010 -: 4 :- the assertion of the petitioner that the petitioner is entitled to employ workmen of his own and that the 5th respondent has no right whatsoever in the matter was an obvious, incorrect and false statement asserted for the purpose of misleading the court to grant an interim order in his favour. In support of this contention, documents have been produced. 7. The learned counsel for the 5th respondent relies on Ext.R5(a) identity card issued by the Welfare Board in support of his contention that workmen registered under the Welfare Board who were members of the 5th respondent Union were available to be employed. He then relies on Ext.R5(b) dated 13/12/2000 which contains a request by the petitioner to the 5th respondent to make available 12 male workers and 16 female workers for the petitioner to carry out an item of work. This is relied on by the learned counsel for the 5th respondent to contend that the petitioner was fully aware of the practice that was going on - of the contractors requesting the Union for workmen to undertake the work which has been awarded to them. The learned counsel for the 5th respondent further relies on Exts.R5(c) to R5(g) agreements to contend that between the workmen and the Union there were agreements regarding wages payable to the W.P.(C) No. 7249 of 2010 -: 5 :- workmen. Ext.R5(g) is for the period 2001-2002; Ext.R5(f) is for the period 2004-2005; Ext. R5(e) is for the period 2007-2008. The learned counsel for the 5th respondent emphasises on the fact that these three agreements were executed by the petitioner as the President of the Union of contractors. 8. The 5th respondent then relies on Ext.R5(d) for the period 2008-2009 and Ext.R5(c) for the period 2009-2010. The learned counsel particularly relies on the recitals in Ext.R5(c) to contend that the said agreement was in force from April 2009 to 31/3/2010. This petition was filed on 5/3/2010. 9. The crux of the contention of the learned counsel for the 5th respondent is that the petitioner, who was formerly the President of the Union and had signed the relevant agreements - Exts.R5(e), (f) and (g) with the Union and he was obviously aware of Exts.R5(d) and (c) agreements, suppressed the practice that was prevalent as also the said agreements which were in force, in particular Ext.R5(c) agreement which covered the period in question. 10. The learned counsel with the help of these documents contends that the petitioner, who was the President of the Association earlier and member of the Association at the relevant W.P.(C) No. 7249 of 2010 -: 6 :- time, did have knowledge; must be presumed to have knowledge and had virtually suppressed that information from the court with mala fide intentions to enable him to run away with an interim order against the 5th respondent. This conduct is mala fide. It deserves to be frowned upon. The disapproval of the court may be expressed by an order directing payment of costs to appropriate authority. No one should be tempted to repeat such conduct, submits the learned counsel for the 5th respondent. 11. We wanted the learned counsel for the petitioner to explain all the circumstances. Reply affidavit and additional affidavit have been filed. Execution of Exts.R5(e), (f) and (g) is not disputed. Ext.R5(b) letter by the petitioner to the Union is also not disputed. It is too much to assume that the petitioner, who had executed Exts.R5(e), (f) and (g) agreements, would have been unaware of the possibility of existence such an agreement for the relevant period. What appears to us to be more significant is the fact that the petitioner did not reveal to the court the fact that there was practice of executing such agreements. Be that as it may, Exts.R5(c) and R5(d) have been produced before Court. There is no contention that the Association of contractors had not entered into such an W.P.(C) No. 7249 of 2010 -: 7 :- agreement. The petitioner raises a flimsy plea that the petitioner was unaware of such agreements and the petitioner had not been taken into confidence by his Union before they entered into such an agreement. Association had entered into that agreement without following the proper procedure and without taking the petitioner into confidence. The execution of the documents by the Association is not disputed. Less said about the contention, the better. 12. The petitioner raises a further contention that at the relevant time he, who was the President earlier, has resigned from his membership in the Association of the contractors, members of which alone can be said to be bound Ext.R5(c) - agreement relevant for the period. Except the self-serving assertion of the petitioner, absolutely nothing has been placed before court to probabilise, prove or establish the said contention of the petitioner. 13. Inference appears to be irresistible in the given circumstances that the petitioner, who was signatory to Exts.R5 (e), (f) and (g) for earlier periods and who must necessarily have known about the existence of such an agreement later or at least should have verified whether any such agreement exists, had not W.P.(C) No. 7249 of 2010 -: 8 :- done the same and had misled the court by fraudulent averments and suppression of relevant facts in the petition. We are in complete agreement with the learned counsel for the 5th respondent that the conduct of the petitioner deserves to be frowned upon. The interim order was obtained from this Court and the work was completed by the next date of posting frustrating the claims of the 5th respondent. 14. Of course, we do note that the interim order was passed on a day when the case was posted for return of notice to the 5th respondent. The 5th respondent had been served also. Counsel for the 5th respondent submits that the inability of the 5th respondent to file counter and place Ext.R5(c) and other agreements should not be reckoned as crucial in these circumstances. We are persuaded to agree with the learned counsel for the 5th respondent. 15. As indicated earlier, nothing survives for decision now. This writ petition only deserves to be dismissed as unnecessary and infructuous now. We do so. But we agree with the learned counsel for the 5th respondent that the course adopted by the petitioner deserves to be frowned upon. 16. Accordingly while dismissing this writ petition, we W.P.(C) No. 7249 of 2010 -: 9 :- direct the petitioner to pay Rs.5,000/- as costs to the High Court Legal Service Committee. Registry shall furnish a copy of this judgment to the Secretary of the said Committee. Costs shall be paid within a period of 60 days failing which the same can be recovered by the Committee. Sd/- R. BASANT (Judge) Sd/- K. SURENDRA MOHAN (Judge) Nan//- //true copy// P.S. to Judge