(Prayer: Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, to direct the respondents 1 and 2 to provide adequate police protection to prevent former employees or current employees including the respondents 3 to 21 from illegally trespassing into the factory premises viz., Hindustan Motor Finance Corporation Limited, Adhigathur Village, Kadambathur Post, Thiruvallur-631 203 and to maintain law and order by forbearing the respondents 3 to 21, their agents, other employees, representatives or any other person acting at their behest in any way preventing ingress and egress of the directors, contract workmen, advisors, visitors of the petitioner or staging any form of protests by gheroing and assembling illegally in any form within 300 meters in and around the petitioner’s factory premises.)
1. This Writ Petition has been filed seeking for Police Protection to prevent respondents 3 to 21 or any other employees from illegally trespassing into the factory premises and to maintain law and order and ensure free ingress and egress of men and material to and from the factory.
2. The case of the petitioner is that the petitioner is having a factory at Adhigathur Village, Kadambathur Post, Thriuvallur, where they used to manufacture Mitsubishi vehicles under license from Mitsubishi Motors Corporation, Japan and were selling those vehicles and spare parts through their own network in India. The sale started coming down drastically, and as a result of the same, the production also started coming down and in July 2016, the management decided to take the services of the employees on need basis only as and when required, but by paying full salary. On and from 17.11.2018, all the manufacturing operations were stopped, as the petitioner did not have any orders for the vehicles and employees, except those who were engaged in the essential maintenance, were orally asked not to report for work and the salary was continued to be paid.
3. From January 2019 onwards, the petitioner was facing serious financial constraints and was not in a position even to pay full wages to its employees. Left with no other alternative, the petitioner by letter dated 01.04.2019, terminated the services of 34 managerial staff including respondents 3 to 21 with effect from 30.04.2019/31.05.2019 and salary was paid till then.
4. It is the further case of the petitioner that out of 34 managerial staff, who were terminated, 20 of them forcibly entered the factory on 02.05.2019, and refused to leave the factory. In spite of several requests, they did not move out of the factory and were also threatening to commit suicide. They also involved in threatening the other officers. Therefore, a Complaint was given to the respondent Police, seeking for Police Protection and since the same was not acted upon, the present Writ Petition has been filed before this Court.
5. Mr.A.L.Somayaji, learned Senior Counsel representing the petitioner submitted that the act of respondents 3 to 21 continuing to sit inside the factory amounts to an offence of criminal trespass. The learned senior counsel in order to substantiate the said submission relied upon the judgment of this Court in Chelpark Company Limited .Vs. The Commissioner of Police and Ors reported in MANU/TN/0505/1967 and Mysore Machinery Manufacturers Ltd. (By Director, M.C.Cherian) .Vs. State of Mysore (By Chief Secretary) and Anr., reported in MANU/KA/0043/1967.
6. The learned Senior Counsel further submitted that respondents 3 to 21 are all managerial Staff and they are not workmen within the meaning of Section 2(s) of the Industrial Disputes Act. All of them have been paid the full and final settlement, and therefore, they do not have the right to stay inside the factory since the employer-employee relationship ceases to exist. He further submitted that conciliation proceedings were initiated before the Assistant Commissioner of Labour (Conciliation), in order to make an attempt to resolve the dispute and the Conciliation Officer specifically requested respondents 3 to 21 on 09.05.2019, to give up their sit in protest and inspite of the same, respondents 3 to 21 continue to squat inside the factory premises. The learned Senior Counsel further submitted that the petitioner left with no other option has filed the present writ petition seeking for Police Protection to ensure the safety of the factory and various machineries inside the factory.
7. Per contra, Mr.NGR. Prasad, learned counsel appearing on behalf of the respondents 3 to 21, submitted that the petitioner had given a specific undertaking before the Joint Commissioner of Labour - Conciliation and to the Government of Tamil Nadu, that the petitioner Company has entered into an asset transfer agreement with PCA Automobiles India Private Limited and has agreed to sell and transfer the lands and also transfer all the existing employees with the same service benefits. The learned counsel further submitted that the e-mail dated 01.04.2019, shows that the entire plant has been transferred to PCA Automobiles India Private Limited, effective from 01.04.2019, and inspite of the same, respondents 3 to 21 are being deprived of their employment.
8. The learned counsel further submitted that respondents 3 to 21 along with three other employees have filed W.P.No.13808 of 2019, before this Court challenging their termination and this Court while dealing with the injunction petition, after hearing both sides, passed an order restraining the petitioner from disengaging the employees and this order is extended from time to time. Under such circumstances, the learned counsel submitted that Police Protection cannot be ordered by this Court, and the same will result in stopping the employees for reporting for work. The learned counsel submitted that this Court took into consideration the termination order dated 01.04.2019, and also the conciliation proceedings pending before the concerned authority and only thereafter passed the interim order.
9. This Court has carefully considered the submissions made on either side and also the materials placed on record.
10. Since the larger issue concerning the employment of respondents 3 to 21 is a subject matter pending in W.P.No.13808 of 2019, and this Court has already passed an interim order restraining the petitioner from disengaging the services of respondents 3 to 21, this Court does not wish to render any finding on the validity of the termination order or regarding the conciliation proceedings pending before the concerned authority. This Court will confine itself only with the issue as to whether respondents 3 to 21 can continue to remain inside the factory premises and if the assistance of the Police is required for the purpose of removing them from the factory premises.
11. It is true that the termination of an employee results in serious hardship to the livelihood of the employee and his family, and therefore, it is natural that employees tend to take the extreme step of conducting agitation or sit in protests or resort to strike, to ensure their continued employment. The collective bargaining is a recognised form of protest. However, this collective bargaining must lead to healthy negotiations and deliberations at the negotiation table. The collective bargaining should not result in a group of employees, taking law into their own hands and start committing act of violence or engage in any other offence. The negotiations are going on before the Conciliation Officer and this Court by virtue of the interim order dated 28.05.2019, has restrained the petitioner from disengaging the services of respondents 3 to 21. Therefore to that extent, the rights of respondent 3 to 21 has been protected.
12. If inspite of the same, can respondents 3 to 21 be permitted to continuously sit inside the factory premises belonging to the petitioner, requires consideration by this Court in this writ petition.
13. For deciding this issue, it will be relevant to rely upon the judgments cited by the learned Senior Counsel appearing on behalf of the petitioner.
14. The first judgment that was cited by the learned Senior Counsel by the petitioner is Mysore Machinery Manufacturers Ltd referred supra. The relevant portions of the judgment is extracted hereunder:
“1. This is an unusual writ petition under Art, 226 of the Constitution of India against the respondents including the Commissioner of Police (respondent 2) praying for the issue of a writ of mandamus or other appropriate direction to take steps for the prevention of commission of offences by the dismissed workmen and to remove the dismissed workmen from the premises of the petitioner-factory so as to prevent them from indulging in the commission of further offences and for taking such action as is necessary under the law to maintain law and order.
2. The facts and the circumstances under which the present writ petition has been filed may be briefly summarized as follows : The petitioner is the Mysore Machinery Manufacturers, Ltd. This factory is engaged in the manufacture of plant and machinery for supply to various manufacturing units and to other factories. It has a capital of about Rs. 20 lakhs in the form of machinery installed within the premises, and the capacity of its workmen attending to the various operations is about 500. On 1 April 1967, the workmen entered the factory, as usual, for work and nothing happened till about 4 p.m. on that day. When the first shift came to an end, 270 workmen refused to leave the premises and the director in charge of the management passed an order of dismissal against those workmen. The workmen who were so dismissed continued to remain within the premises of the factory in spite of the warning that their conduct amounted to misconduct as offending the various standing orders of the company. These workmen had stopped work and a chargesheet was issued against them on April 4, 1967 asking them to show cause why action should not be taken against them for acts of misconduct detailed in the chargesheet. It is pertinent to mention that this chargesheet and show cause notice were issued after setting aside the earlier order of dismissal of April 1, 1967. On April 6, 1967, the workmen filed their statements denying the allegations made against them and contending that there was no strike on their part but that there was illegal lockout on the part of the management. They stated that “overstay inside the factory after doing out work as usual is not a strike; it is not an offence as alleged.”
25. We have already indicated that as soon as an order of suspension or dismissal was made, the right of the workmen to remain in the premises came to an end and their continuance on the property of the management with the avowed object of excluding the management from the use of the factory and preventing the supervisory staff and other willing workmen by intimidation and threat of violence from attending to their duties would attract the relevant provisions of the Penal Code relating to a criminal trespass and wrongful restraint.
26. In National Labour Relations Board v. Fansteel Metallurgical Corporation [(1939) 306 U.S. 240], the employees had resorted to violence and coercion. The Supreme Court of America had to consider what would be the nature of the strike resorted to by such workmen and observed as follows:
“But reprehensible as was that conduct of the respondent, there is no ground for saying that it made the respondent an outlaw or deprived it of its legal rights to the possession and protection of its property. The employees had the right to strike but they had no licence to commit acts of violence or to seize their employer’s plant. We may put on one side the contested questions as to the circumstances and the extent of injury to the plant and its contents in the efforts of the men to resist eviction. The seizure and holding of the buildings was itself a wrong apart from any acts of sabotage. But in its legal aspect the ousting of the owner from lawful possession is not essentially different from an assault upon the officers of an employing company or the seizure and conversion of its goods or the despoiling of its property or other unlawful acts in order to force compliance with demands. To justify such conduct because of the existence of labour dispute or of an unfair labour strike would be to put a premium on resort to force instead of legal remedies and to subvert the principles of law and order which lie at the foundations of society.”
27. Proceeding further, Hughes, C.J., who delivered the judgment of the majority, observed:
“This was not the exercise of ‘the right to strike’ to which the Act referred. It was not a mere quitting of work and statement of grievances in the exercise of pressure recognized as lawful. It was an illegal seizure of the buildings in order to prevent their use by the employer to lawful manner and this by acts of force and violence to compel the employer to submit. When the employees resorted to that sort of compulsion, they took a position outside the protection of the statute ...”
28. We are not concerned in this case with the question as to whether the termination of their employment was legal or illegal. What we are concerned with is the conduct of the dismissed workmen in persisting to remain on the property even after the order of dismissal and during day and night. This conduct, in our opinion, as already observed, is not only wholly unjustified but is also illegal bringing the action of such of them as are persisting in such conduct within the four corners of the law.
15. The next judgment relied upon by the learned Senior Counsel is the judgment in Chelpark Company Limited referred supra. The relevant portions of the judgment is extracted hereunder:
“12. The petitioner does not dispute that the stay-in-strike commenced by the workmen is legal; but it is contended that the workmen have no right to stay in the factory premises after the closing hours and their continuance in the factory premises after the closing hours is unlawful. The entry by the workmen into the factory premises during working hours is lawful. Their stay in the factory premises till the closing of the working hours is also lawful. But I am of the View that the striking workmen have no right to remain in the factory premises after working hours and their remaining in the premises after having entered lawfully, is unlawful and it will amount to trespass. It is not in dispute that the factory premises belonged to the petitioner. It is the property of the petitioner. The Working hour’s of the factory are between 8 A.M. to 5-30 P.M. on Week days and 8 A.M. to 1 P.M. on Saturdays. By virtue of relationship as employer and employees, the employees have got a right to enter the factory premises at the commencement of working hours and stay and work during Working hours and leave at the closing of Working hours. Either before or after the working hours, they have no right to occupy they property of the employer. The employees can stay and strike only during the Working hours, when they can stay and work. As the employees are entitled to work during working hours, they can refuse to work only during Working hours, while they stay and strike. After the closing hours, the employer has to close the factory and make arrangements for the protection of the property. The employer is entitled to possession and protection of his property. The act of the striking workmen, in remaining after the working hours will amount to seizure and holding of the building, preventing the use of the premises by the employer in a lawful manner. The employer is practically deprived of his property when the Workmen remained on the factory premises after working hours. Therefore, the workmen remaining in. the factory premises after the working hours is unlawful and will amount to trespass.
13. The next point to be considered is whether the act of remaining after the working hours in the factory premises by the striking workmen will amount to criminal trespass. ‘Criminal trespass’ is defined in Section 441, Indian Penal Code, which reads thus:
Whoever enters into or upon property in the possession of another, with intent to commit an offence or to intimidate, insult or annoy any person in possession. of such property, or having lawfully entered into or upon such property, unlawfully remains there With intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit ‘criminal trespass.
14. I have found that the entry by the striking workmen into the factory at the commencement of the Working hours Was lawful; but their remaining after the working hours in the factory was unlawful and will amount to ‘trespass.’ To bring it within the mischief of this definition, it is necessary to prove that the striking workmen having remained unlawfully in the factory premises, had the intention to commit an offence or to intimidate, insult or annoy the petitioner. It is contended on behalf of the Workmen as noted already, that they had no intention to commit any offence or to annoy, insult or intimidate the petitioner; but their object in staying even after the working hours in the factory was only to press the petitioner to concede their demands. I am unable to agree with this contention. It is true that the ultimate object of the striking workmen is to make the petitioner yield to their wishes. But the means adopted to achieve their object must also be lawful. The striking workmen not only refused to receive the order of injunction served on them knowing that the said order was sought to be served; but remained in the premises after working hours preventing the petitioner from closing the premises for protecting and safeguarding his property, obstructing the of male employees from leaving the premises, indulging in insulting the members of the staff of the petitioner and intimidating the members of the staff of the non-striking workmen including lady members by using provocative language likely to lead to a breach of the peace. These acts were intentionally done by them for the demand of their ulterior end. Some of the acts committed by them would amount to offences under Sections 341, 503 and 504, Indian Penal Code. It is no doubt true that if an act is done knowing that a particular result is likely to follow in consequence of such act, it cannot be said that such consequences were intended, unless the facts of a particular case warrant such an inference. The intention is subjective. It cannot be proved; but can only be inferred from the facts and circumstances of the case. Taking into consideration the circumstances of this case, I have no doubt in my mind that the striking workmen remaining after working hours, intended to annoy, insult, intimidate and commit offences, of course, to achieve their ultimate object of bringing pressure on the petitioner to concede to their demands. Every act done by them Was intended, bringing them within the mischief of Section 441 Indian Penal Code. These striking workmen had committed criminal trespass by unlawfully remaining in the factory premises after working hours.
15. The learned Counsel for the striking Workmen relied upon the following observation made by the Supreme Court in Punjab National Bank v. A.I.P.N.B.E. Federation at 176:
Even if we assume that the employees’ entry in the premises was unlawful or that their continuance in the premises became unlawful, it is difficult to appreciate the argument that the said entry was made with intent to insult or annoy the superior officers.
This observation, as stated already, was made in the context and circumstances of that case. In paragraph 54 of the judgment in that case, we find an indication that the strikers were peaceful and non-violent and had done nothing more than occupying their seats during office hours.
16. In the context, it is worthy to note the following passages in the judgment of the Supreme Court of United States in National Labour Relations Board v. Fanskel Metallurgical Corporation (1939) 306 U.S. 240, where the employees had resorted to violence and coercion while striking work:
The employees had the right to strike but they had no licence to commit acts of violence 6r to seize their employer’s plant. We may put on one side the contested questions as to the circumstances and the extent of injury to the plant and its contents in the efforts of the men to resist eviction. The seizure and holding of the buldings was itself a wrong apart from any acts of sabotage. But in its legal aspect the ousting of the owner from lawful possession is not essentially different from an assault upon the officers of an employing company or the seizure and conversion of its goods or the despoiling of its property or other unlawful acts in order to force compliance with demands. To justify such conduct because of the existence of labour dispute or of any unfair labour practice would be to put a premium on resort to force instead of legal remedies and to subvert the principles of law and order which lie at the foundations of society.
Proceeding further, Hughes, G.J., who delivered the judgment of the majority, observed;
This was not the exercise of ‘the right to strike’ to which the Act referred. It was not a mere quitting of work and statement of grievances in the exercise of pressure recognised as lawful. It was an illegal seizure of the buildings in order to prevent their use by the employer in a lawful manner and thus by acts of force and violence to compel the employer to submit. When the employees resorted to that sort of compulsion they took a position outside the protection of the statute.
17. These two passages were quoted with approval in a recent Mysore case in W.P. No. 1021 of 1967. The Division Bench in that case while considering a petition filed for the issue of a writ of mandamus to the Chief Secretary and the Commissioner of Police, Bangalore, held that the striking workmen committed the offence of criminal trespass by staying in the factory premises day and night. The workmen in that case were dismissed by the management and after dismissal they resorted to ‘stay-in-strike’ and squatted on the factory premises during and after working hours day and night. The learned Counsel for the workmen -contended that in the Mysore case, the relationship between the employer and the employee ceased by the termination of service by order of dismissal and that their remaining on the property Would amount to trespass; but in the present case, the relationship between the employer and the employees did not cease and that their remaining on the factory premises even after working hours will not amount to trespass. Of course, it is true that in the Mysore case, the workmen were dismissed. It has been held in that case that the dismissed workmen had committed trespass even while they entered into the premises because their services were terminated. In the present case, as already noted, the entry by the workmen is lawful. But their remaining after working hours, when they have no right to stay, will amount to trespass. So far as remaining on the factory premises after the working hours is concerned, it does not make any difference, whether the stay is by the dismissed workmen or by the workmen in service. In W.P. No. 1021 of 1967, the Division Bench of the Mysore High Court has observed as follows:
We are not concerned in this case with the question as to whether the termination of their employment was legal or illegal. What we are concerned with is the conduct of the dismissed workmen in persisting to remain on the property even after the order of dismissal and during day and night. This conduct, in our opinion, as already observed, is not only wholly unjustified but is also illegal bringing the action of such of them as are persisting in such conduct within the four corners of the law.
The emphasis that is laid down in this passage is the workmen remaining on the property during clay and night. With respect, I agree with these observations.
18. In view of the contention raised by the second respondent that there was no breach of any statutory duty cast on the respondents for the issue of direction as prayed for by the petitioner, it is necessary to refer to the relevant provisions of law to ascertain the scope of the obligations and duties of Police Officers.
19. Besides the powers provided under the Criminal Procedure Code, which Would be adverted to presently, the powers and duties of a Police Officer are enumerated in the Madras City Police Act, 1888 (hereinafter called < the Act’). Section 23 of the Police Act says:
Every Police Officer shall, for the purpose of this Act, be considered to be always on duty. He shall not engage, without the written permission of the Commissioner in any duty other than his duties under this Act. It shall be his duty to use his best endeavours and ability to prevent offences and public nuisances; to preserve the peace; apprehend disorderly and suspicious characters; to detect and bring offenders to justice; to take charge of all unclaimed property; to seize and impound stray cattle; to collect and communicate intelligence affecting the public peace, and promptly to obey and execute all orders and warrants lawfully issued to him and it shall be lawful for every Police Officer, for any of the purposes mentioned in this section, without a warrant to enter and inspect any drinking shop, gaming-house or other place of resort of loose or disorderly characters.
Under Section 41 of the Act, the Commissioner or, subject to his orders, any Police Officer above the rank of head constable, may prohibit any assembly for the preservation of the public peace or public safety. Section 51-A of the Act gives power to the Commissioner of Police to direct removal of certain classes of persons who are about to be engaged in the commission of any offence involving force or violence or punishable under Chapter XII, XVI, or XVII of the Indian Penal Code or in the abetment of any such offence.
20. Section 154, Criminal Procedure Code, provides that every information relating to the commission of a cognizable offence must be reduced to writing by the officer in charge of the Police Station and signed by the person giving it; Section 156, Criminal Procedure Code, empowers such Police Officer to investigate any cognizable case without the order of a Magistrate; and under Section 157, Criminal Procedure Code, if an officer in charge of a Police Station has reason to suspect the commission of a cognizable offence, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report, and shall proceed in person, or shall depute one of his subordinate officers to investigate the facts and circumstances of the case. Under Chapter IX of the Criminal Procedure Code, a Police Officer is empowered to disperse unlawful assembly. Section 127(1), Criminal Procedure Code, reads as follows:
Any Magistrate or officer in charge of a Police Station may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the pubic peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly.
21. From the foregoing provisions, it is clear that the Police Officers have obligations and duties to perform, such as dispersing unlawful assembly, preserving peace, detecting and bringing offender to justice, removing persons under certain circumstances, and investigating cognizable offences and similar other things”.
16. It is clear from the above judgments that the entry by an employee during the working hours into the factory premises is law
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ful. However, they do not have the right to remain in the factory premises after the working hours and they continuing to remain in the factory premises after having entered lawfully is unlawful, and it will amount to trespass. An employee does not have the right to occupy the property of the employer. The act of the employees remaining after the working hours inside the factory premises will amount to seizure and holding of the building, preventing the use of the premises by the employer and practically depriving the employer of his property. 17. The conduct of respondents 3 to 21 in persisting to remain inside the factory premises of the petitioner all through the day is wholly unjustified. Even, if the respondents 3 to 21 are making efforts to impress upon the petitioner to continue their employment and by putting pressure are making the petitioner yield to their request, the method adopted by them in staying within the premises even after the working hours is unlawful. As held by this Court, the means adopted to achieve their object must also be lawful. The act of respondents 3 to 21 in continuing to occupy the premises right from 02.05.2019 onwards till date is intended to annoy, insult, intimidate and commit offences, and therefore it clearly falls within the mischief of Section 441 of IPC and the same will amount to criminal trespass. 18. This Court therefore has no hesitation to hold that the act of respondents 3 to 21 continuing to forcibly occupy the factory premises from 02.05.2019, till date clearly amounts to an offence under Section 441 of IPC and their continued sit in protest is unjustified and unlawful. Therefore, this Court has to necessarily dispose of this writ petition by giving certain directions. 19. This Writ Petition is disposed of with the following directions: [a] Respondents 3 to 21 shall immediately leave the factory premises on their own on or before 17.06.2019. [b] If respondents 3 to 21 refuse to leave the factory premises within the time stipulated by this Court, the petitioner shall take the assistance of the 2nd respondent to remove them from the factory premises and the 2nd respondent shall provide necessary Police Protection in that regard. [c] This Court has already passed an interim order restraining the petitioner from disengaging the services of respondents 3 to 21. If their services are not utilised by the petitioner as directed by this Court, it is left open to respondents 3 to 21, to work out their remedy in accordance with law. [d] The 2nd respondent shall provide Police Protection to the factory premises of the petitioner Company to ensure free ingress and egress of men and materials. [e] The 2nd respondent shall ensure that no law and order problem is created near the factory premises and normalcy is maintained. [f] In case of any strike or demonstration, the same can be conducted 200 mtrs aways from the petitioner’s factory premises. There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.