2012 Supreme(Mad) 2370

High Court of Judicature at Madras
S. MANIKUMAR
Fenner (India) Limited
Versus
The Superintendent of Police & Others
W. P. No. 18723 of 2003
Decided on : 12-06-2012

The right to carry on any occupation or trade or business is a fundamental right guaranteed under Article 19(g) of the Constitution of India. At the same time, right to strike work, though a recognised right, is not a fundamental right. Such a right can be exercised only as per the provisions of the industrial laws. It cannot exceed to the extent of preventing ingress and egress of raw materials, finished goods and other activities, attracting penal provisions of the statute. Union or the workers cannot affect the rights and interest of the other persons who are willing to work, by doing acts not permissible in law.

Headnote:

Writ Petition - Police Protection - Maintainability - Suppression of Facts - Prima Facie Case - Mandamus - Final Decision - Industrial Disputes Act, 1947 - Trade Unions Act - Constitution of India, Article 226.

Fact of the Case:

The petitioner, a public limited company engaged in manufacturing yarn, exported to various countries, invested 15 crores for building and advanced automatic imported machinery to meet international quality. The employees were paid wages as per the settlement arrived at under Section 12(3) of the Industrial Disputes Act, 1947. The settlement expired on 30.06.2002 but was allowed to continue as per Section 19(6) of the Act. Textile Trade Unions demanded revision of wages and the dispute was pending before the Special Industrial Tribunal. Meanwhile, respondents 4 to 11, Employees Unions unilaterally raised similar demands and threatened all the workers to go on illegal strike without giving any notice in the prescribed manner. The Assistant Commissioner of Labour advised the striking unions to resume work and most of the workers started returning to work, but respondents 4 to 11 threatened the workers who returned for duty with dire consequences and also prevented free ingress and egress of men and materials, including the workers willing to work. The petitioner lodged a complaint with the police station and the Deputy Superintendent of Police, but no effective action was taken. The petitioner sought a writ of Mandamus, directing the respondents 1 to 3 to provide police protection to the petitioner's industry to run peacefully with its staff and willing workers and thereby prevent the 4th to 11th respondent unions, their members, office bearers, agents, and outside supporters from assembling within a radius of 300 meters of the petitioner's factory premises, from preventing free ingress and egress of men, materials, and vehicles.

Finding of the Court:

1. The petitioner has not suppressed any material facts before the Court and obtained an interim order. 2. A writ petition for police protection would lie when there is an alternative remedy. 3. The petitioner has made out a prima facie case for issuance of a Mandamus. 4. The evidence placed before the Court is sufficient for issuance of a writ and the management need not be driven to a Civil Court to lead evidence.

Issues: 1. Whether the petitioner has suppressed any material facts before the Court and obtained an interim order and on account of such suppression, the writ petition has to be dismissed in limine. 2. Whether a writ petition for police protection would lie when there is an alternative remedy. 3. Whether the petitioner has made out a prima facie case for issuance of a Mandamus. 4. Whether the evidence placed before the Court is insufficient for issuance of a writ or the management should be driven to a Civil Court to lead evidence.

Ratio Decidendi: 1. Suppression of material facts is explained in Paragraph 12 of the judgment in Arunima Baruah v. Union of India and others reported in 2007 (6) SCC 120, as follows: “12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.” 2. The existence of an alternate remedy is not a bar and whether such an alternate remedy is efficacious or not, depends upon the facts and circumstances of each case and the burden is on the petitioner to prove that the alternate remedy is not efficacious. 3. The exercise of the power under Article 226 of the Constitution of India as described by the Supreme Court of India is a “reserve power” and it can be exercised to meet extraordinary or special or grave situation or emergencies, to remedy palpable injustice or hardship, when a person, seeking for issuance of Mandamus has satisfied the superior court with proper pleading and evidence, for issuance of a writ of Mandamus.

Final Decision: The writ petition is allowed. The respondents 1 to 3 are directed to provide police protection to the petitioner's industry to run peacefully with its staff and willing workers and the respondents unions 4 to 11 respectively, their members shall hold demonstrations, slogans, or conduct any of the lawful activities, as per the Trade Unions Act and other Industrial Laws, 200 meters away from the petitioner's factory premises.