Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 822 of 2008 Honda Siel Power Products Ltd. Having its Regd. Office at Plot No. 5 Sector-41 (Kasana), GNIDA, District Gautam Budh Nagar, UP-201306 Having its Factory at Village and P.O. Bhigwara, Via Kichha, P.S. Rudrapur, District Udham Singh Nagar, Uttarakhand Through R.P. Mehrotra, Shareholder of Honda Siel, Power Products Limited, R/o E-129, Sector-41, Noida, District Gautam Budh Nagar, U.P. …………..Petitioner. Versus (1) State of Uttarakhand through its Principal Labour Secretary, Dehradun, Uttarakhand. (2) District Magistrate, District Udham Singh Nagar, Rudrapur. (3) Senior Superintendent of Police, Udham Singh Nagar, Uttaranchal. (4) Deputy Superintendent of Police, Udham Singh Nagar, Uttaranchal. (5) Station House Officer, Rudrapur, Udham Singh Nagar. (6) Shri Ram Honda Shramik Sangthan, Bigwara (Rudrapur), District Udham Singh Nagar through its Secretary Shri Amar Singh. (7) Shri Amar Singh, S/o Shri Veer Singh, R/o Mohalla Bhadaipura (New Primary School), P.O. Rudrapur, District Udham Singh Nagar. …………..Respondents. Along with Writ Petition No. 821 of 2008 R.P. Mehrotra, Sharenholder of Honda Siel, Power Products Limited, R/O E-129, Sector-41, Noida, District Gautam Budh Nagar, U.P. …………Petitioner. Versus (1) State of Uttarakhand through its Principal Labour Secretary, Dehradun, Uttarakhand. (2) District Magistrate, District Udham Singh Nagar, Rudrapur. (3) Senior Superintendent of Police, Udham Singh Nagar, Uttaranchal. (4) Deputy Superintendent of Police, Udham Singh Nagar, Uttaranchal. (5) Station House Officer, Rudrapur, Udham Singh Nagar. (6) Shri Ram Honda Shramik Sangthan, Bigwara (Rudrapur), District Udham Singh Nagar through its Secretary Shri Amar Singh. (7) Shri Amar Singh, S/o Shri Veer Singh, R/o Mohalla Bhadaipura (New Primary School), P.O. Rudrapur, District Udham Singh Nagar. …………..Respondents. Sri Sudhir Chandra Agarwal, Senior Advocate, assisted by Sri V.B.S. Negi, Advocate, present for the petitioners. Sri H.C. Pujari, Additional Government Advocate, present for the respondents No. 1 to 5. Sri M.C. Kandpal, Senior Advocate, assisted by Sri S.S. Chaudhary, Advocate, present for the respondents No. 6 and 7. Sri Manoj Tiwari, Advocate, present for the workmen. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. [Oral- Hon’ble Prafulla C. Pant, J.] By means of these two petitions, Honda Siel Power products limited have sought writ in the nature of mandamus commanding the respondents No. 1 to 5 to provide adequate security for shifting the plant and machinery of their Factory. A further direction has been sought providing adequate protection to the Officers and Staff of the petitioner-Company in shifting the unit from Rudrapur (Uttarakhand) to Greater NOIDA (U.P.). Also, a direction is sought restraining the respondents No. 6 and 7 from interfering with the shifting of the plant and machinery by the petitioner-Company. Lastly, a direction has been sought requiring respondents No. 3 to 5 to initiate criminal action, relating to offence punishable under Sections 341, 352, 441, 447, 504 and 506 I.P.C. against the persons hindering the process of shifting of the Factory by the petitioner-Company. (2) Heard learned counsel for the parties and perused the affidavits, counter affidavits, rejoinder affidavits and supplementary/additional affidavits. (3) Brief facts of the case, as narrated in the writ petition, are that petitioner-Company is engaged in manufacturing of portable gensets, I.C. engines and water pumping sets etc.. It established its Factory in the year 1986 at Rudrapur. The petitioner-Company requires components made of Aluminium casting for its products, which they used to purchase from various suppliers. Since the suppliers used to supply sub- standard material, the petitioner-Company suffered considerable loss. To overcome the situation the petitioners decided to install its own Aluminum casting plant at Greater NOIDA. In November 2000, petitioners started received Aluminium casted components from Greater NOIDA but time and again it was required to be sent for quality check back to NOIDA, as such the petitioners had to incur huge expenditure in transporting the material. In the circumstances, it decided to shift its Factory from Rudrapur (Uttarakhand) to Greater NOIDA (U.P.). The respondent No. 6 Shri Ram Honda Shramik Sanghthan opposed the move and resorted to strike. Consequently, the petitioners filed a Civil Suit No. 6 of 2002, wherein the petitioners got an ad interim injunction against the aforesaid respondent from the court of Civil Judge, restraining them from resorting violent administration within 200 meters of the premises of the Factory. In 2002, a Writ Petition No. 208 of 2002 (M/B) was filed by the petitioners seeking adequate protection to the Staff of the petitioners in shifting its equipment to Greater NOIDA (U.P.). Vide order dated 13.06.2002, this Court disposed of the writ petition directing the Senior Superintendent of Police, Udham Singh Nagar, to maintain law and order and the prevent untoward incident/violence in the surrounding area of the industrial unit of the petitioner- Company. However, since the petitioners could not shift the Factory except the Aluminium shop, the sale of the petitioner-Company started showing, steady decline. Finally, on 30th June 2007, Board of Directors of the petitioner- Company decided to shift all manufacturing unit from Rudrapur (Uttarakhand) to Greater NOIDA (U.P.). It further decided to transfer the employees of Rudrapur Factory to the Factory to be established at NOIDA. The petitioners while taking the decision of shifting all the units of Factory provided complete protection of the workman, emoluments and benefits of service conditions. Even then, respondent no. 6 opposed the shifting of the Factory and some 80 to 100 workers led by respondent No. 7 resorted to criminal activities to prevent the shifting of the Factory. When the District Administration and the Police Officers were approached, they did not held the petitioners and permitted free hand to the agitating workers to run a mock. Another Suit No. 80 of 2008 was instituted in the court of Civil Judge (Junior Division), Rudrapur, Udham Singh Nagar, however, no interim injunction was granted by said court. In the writ petition, it is further stated that since the petitioners have suffering great injury and loss, being unable to shift the Factory to Greater NOIDA and their right to carry on business is affected. Hence, the petitioners have sought the directions from this Court to provide adequate security to the petitioners in shifting the plant and machinery. (4) In the counter affidavit filed on behalf of respondents No. 6 and 7 it has been stated that since the dispute between the parties is a labour dispute, no criminal writ petition, as filed by the petitioners, is maintainable in this Court. It is further stated that after availing sales tax subsidy and a part of lease land from the State Government, petitioners want to close the industry at Rudrpur to which they are not entitled without permission under the U.P. Industrial Disputes Act, 1947. It is further stated by the answering respondents that shifting of the industry from Uttarakhand without permission of the State Government is illegal. It is further stated in the counter affidavit that instead of declining the production, in the industry at Rudrapur, has gone up, year after year. It is denied that the respondents No. 6 or 7 have resorted to any illegal activities. (5) In the counter affidavit filed on behalf respondent No. 3 and 5 the facts in the manner stated in the writ petition are not admitted. It is stated on behalf of the District Administration and Police authorities that during the course of agitation of workers of the petitioner-Company effective measures are taken by the answering respondents to prevent untoward incident and to maintain law and order. Sufficient Police force is provided at the Factory gate to maintain law and order. It is further stated that agitating workers are agitating peacefully at a distance of 30 meters from the gate of the Factory. It is further stated that the Factory Management itself closed the gate of the Factory and did not allow the workers to enter into the Factory premises on the ground that all the workers have been transferred to new establishment at Greater NOIDA (U.P.). The report, submitted on 01.10.2008 at Police Station Rudrapur, on behalf of Management, was registered as Crime No. 488 of 2008, relating to offence punishable under Sections 147, 452, 504 and 506 I.P.C. (6) In the rejoinder affidavits filed on behalf of petitioners the averments made in the writ petition are reiterated. It is further stated that the petitioners have informed the authorities concerned relating to shifting of the Factory, and as such shifting of the industry is not illegal. (7) In the additional affidavit filed on behalf of the petitioners it is stated that interim order passed by this Court are being misinterpreted by the authorities concerned and under Right To Information Act petitioners have obtained nothing of the Secretariat showing the Chief Minister’s approval to the shifting of the Factory. However, it is admitted in Para 14 of the additional affidavit that during the pendency of this writ petition following industrial dispute has been referred to the Industrial Tribunal. ‘Whether the shifting by the Management of M/S Honda Siel Power Products Limited, Bagwara, Rudrapur, Udham Singh Nagar, to Greater NOIDA amounts to closure of the establishment? If yes, whether closure of the said establishment is legal? If not, to what benefits the workmen employed in the establishment are entitled? With full description? (8) On 17.10.2008, after hearing the learned counsel for the parties, this Court as an interim measure directed the respondents No. 3, 4 and 5 to see that proper security is provided to the plant and machinery of the petitioners at Rudrapur and personnel working there. On 02.01.2009, the interim order was clarified by this Court that this Court is neither permitting the petitioners to shift nor passing any restraint order against the shifting as to decide the said issue the alternative forum exists. It is also made clear that the Police have not been asked to prevent the petitioners from shifting of the industry. (9) Learned counsel for the petitioners argued that the shifting of an industry from one place to another is not closure of the industry as such Section 6-W of U.P. Industrial Disputes Act, 1947, has no applicability to the present case and no permission is required for the shifting. Our attention is also drawn to the principle of law laid down in Parry & Co. Ltd. Vs. P.C. Pal & Ors. (1969) 2 S.C.R. page 976 and Fertilizer Corporation of India Vs. Hindustan Fertilizer Corporation Ltd. 1992 LAB. I.C. 991 in support of the argument. On the other hand learned counsel for the respondents contended that the referred cases relate to the Industrial Disputes Act 1947 (Central) and not the one covered under U.P. Industrial Disputes Act, 1947 (applicable to State of Uttarakhand). It is submitted on behalf of respondents that shifting of industry from State of Uttarakhand to another State is nothing but closure of the industry. Having heard learned counsel for the parties we are f the view that it is not desirable on the part of this Court to express opinion either way as the same issue has admittedly been referred to the Industrial Tribunal for consideration whether such shifting amounts to closure or not. (10) Sri Sudhir Chandra Agrawal, Senior Advocate, appearing on behalf of the petitioners further argued that since workman are not being retrenched or terminated and they have been transferred to the Factory established at NOIDA as such even otherwise the shifting of the industry is bona fide and petitioners have a right to shift its unit from Rudrpaur, Udham Singh Nagar (Uttarakhand) to NOIDA (U.P.) and the District Administration and Police is bound to provide protection to the petitioners. In reply to this, learned counsel for the respondents argued that since the shifting of the industry from the State amounts to closure of the industry for the purposes of the U.P. Industrial Disputes Act, 1947, and as such the same is illegal, and no direction can be issued by the Court to provide protection for doing an illegal act on the par of the petitioners. (11) Admittedly, the petitioners have neither sought permission to close the unit at Rudrapur nor any communication has been given to them permitting the closure. Mere nothing in the Secretariat file relating to approval to shift the unit, does not amount communication of the decision. As far as the question – Whether shifting the unit to another State amounts to closure in the previous State or not, the same is sub judice before the Industrial Tribunal, and as such it cannot be said at this stage whether shifting of its unit by the petitioner is in accordance with law or not. In the circumstances, we do not think it just and proper to direct the respondents no. 1 to 5 to provide police protection to the petitioners in shifting the machinery and plant from Rudrapur to Greater NOIDA (U.P.), but the petitioners are entitled to the protection of plant and machinery and its personnel at Rudrapur. (12) Accordingly, we decline the directions sought in the petition seeking police protection for shifting plant and machinery from Rudrapur to Greater NOIDA without permission from the State Government. However, we direct the respondents no. 3 to 5 to provide the necessary security to the plant and machinery of the petitioners and its personnel and staff working at Rudrapur. With these directions both the Writ petitions stand disposed of. (B.S. Vrma, J.) (Prafulla C. Pant, J.) 26.02.2009 NS