(Prayer: This Petition is filed under Article 226 of the Constitution of India, with a prayer to direct the R-1 to evacuate all the workmen inside the factory premises of the Petitioner located at Plot Nos. 15/16, Peenya Industrial Area, Bengaluru-560058 and ensure that no outsider or workmen forcibly enters the factory premises.)
1. The petitioner-Company is before this Court seeking issue of mandamus to direct the 1st respondent-jurisdictional police to evacuate all the workmen inside the factory premises of the petitioner located at plot No.15/6E, Peenya Industrial Area, Bengaluru and to ensure that no outsider or workmen forcibly enters the factory premises.
2. The petitioner which is a public limited company has its factory at the place as mentioned above. The case of the petitioner is that as it had incurred cash losses for three consecutive years ending 31.03.2014 totalling in all Rs.11.71 crores were compelled to lease the factory to one M/s. Expraco Composites India Pvt. Ltd., Bengaluru through a lease deed dated 15.03.2015. In terms of the agreement the petitioner terminated the services of all its employees by giving them one month notice period and 15 days wages as compensation, consequent on the transfer of management in terms of Section 25FF of the Industrial Disputes Act (ID Act for short). The petitioner contends that though the workmen who are the members of the 2nd respondent - Union received the settlement amount and encashed the cheques, thereafter resorted to offences such as forcibly entering the factory premises and living inside the factory premises without allowing the petitioners, its Officers or the lessee and its Officers to enter into the factory premises. In that view the petitioner wrote letters dated 31.07.2015 and 23/31.07.2015 to the 1st and 2nd respondents. The 1st respondent did not provide any assistance to the petitioner. It is in that view the petitioner is before this Court seeking appropriate direction in that regard.
3. The 2nd respondent - Union has filed a detailed objection statement claiming with regard to its right to carry on its Trade Union activities and the protection available under Section 18 of the Trade Unions Act (TU Act for short). It is in that light contended that since the factory has been illegally closed the 2nd respondent has protested the same and has been peacefully carrying out its agitation. Insofar as the lease as claimed by the petitioner it is disputed by them and it is contended that the petitioner is an export oriented company and in order to take advantage of the avoidance of statutory duties the work is being diverted from Bangalore Factory to Chennai to the detriment of the workmen who are the members of the 2nd respondent - Union. It is their case that the present transaction cannot be considered as a transfer of undertaking but on the other hand it is an illegal closure without compliance of the provisions contained in Section 25-O of the ID Act. In that view they have raised an Industrial dispute relating to the same which is referred to Industrial Tribunal through the order dated 17.08.2015 and is pending in I.D. No.129/2015. Since the petitioner in the meanwhile was seeking to alter the situation, the 2nd respondent - Union and its members have resorted to the right available both under the ID Act as well as TU Act.
4. It is further contended by them that if the 2nd respondent and its members are disturbed from the open space wherein they are observing peaceful dharna/satyagraha the petitioner would thereafter destroy the material evidence to establish their case before the Industrial Tribunal. It is contended that the said M/s. Expraco Company has filed a suit in O.S. No.6056/2015 seeking a similar relief to evict the 2nd respondent and its members from the premises. The 2nd respondent - Union has further referred to the other disputes that existed between the petitioner - Company and the 2nd respondent - Union relating to the service conditions of the workmen. It is contended that the 2nd respondent has not occupied any portion of the factory as the whole factory building is kept locked from 30.03.2015 and regular watchmen employed by the petitioner is working round the clock to keep vigil over the factory building and premises. In that view it is contended that the peaceful activity of the 2nd respondent does not cause any hardship to the petitioner and as such the direction as sought is not sustainable. They therefore seek dismissal of the petition.
5. Heard Sri. S.N. Murthy, learned Senior counsel for Sri. Somashekar, learned counsel for the petitioner, Sri. Y.D.Harsha, learned Government Advocate for 1st respondent, Sri.K.S.Subramanya, learned counsel for 2nd respondent - Union and perused the petition papers.
6. In the above background when the petition was at the initial stage, this Court by the order dated 15.09.2015 on taking note of the grievance of the petitioner and considering that certain records relating to the company was to be retrieved by the petitioner, had passed interim orders in that regard. The learned counsel for the respondent in that regard would refer to the memo filed before this Court to contend that the petitioners infact had exceeded the leave granted by this Court and as such have committed contempt. Though such contention is put forth I do not see reason to advert to those aspects of the matter at this point in time as the petition itself is heard for final disposal. Hence, if any such grievances arise it is for the parties to avail their remedies in accordance with law in the appropriate proceedings.
7. On the main issue arising for consideration in this petition, though contentions have been urged with regard to the transfer of undertaking under Section 25FF of the ID Act as claimed on behalf of the petitioner-Company and the same being refuted and being contended that the act of the petitioner- Management amounts to illegal closure without complying the requirements of Section 25-O of ID Act, such contentions need not be examined as it is beyond the scope of the instant petition. In any event admittedly a dispute has been raised and the matter having been referred to the Industrial Tribunal in ID No.129/2015, it would be considered by that Court keeping in view the legal position. Pending consideration of the same, whether the relief of intervention by the 1st respondent as sought by the petitioner is to be accepted by this Court is what requires consideration.
8. In that regard the learned Senior counsel for the petitioner has relied on the decision of the Hon'ble Division Bench of this Court in the case of Mysore Machinery Manufacturers Ltd., Bangalore Vs. State [AIR 1969 MYS 51]. The Hon'ble Division Bench while examining a situation where the dismissed workmen had refused to leave the premises and in that circumstance when they were to be evacuated to enable the functioning of the factory had considered the situation and had arrived at a conclusion that in the said facts there were reasonable grounds to believe the commission of cognizable offences or threat of commission of such offences by the workmen concerned. It was noticed that the Management was concerned to have the facilities so as to enable to work their factory and protect the interest of such workmen who are willing to work in the factory. In that circumstance the passive attitude of the respondent - State was found to be inappropriate. It is in that view the possibilities was referred and the decision was left open to the police officer in the manner in which it is to be done, but directed to remove the dismissed workmen from the premises of the factory.
9. The learned counsel for the 2nd respondent - Union has on the other hand referred to a decision of another Hon'ble Division Bench of this Court in the case of Chandrana Brothers and others Vs. K.Venkat Rao and others [1976(1) Kar.L.J. 245] wherein the right of a Trade Union to resort to peaceful agitation by gathering together either outside the industrial establishment or inside within the working hours in a peaceful manner without violence, intimidation etc., was taken into consideration and for such act the protection available under Section 18 of the TU Act is noted. In that light it was held that the workers are entitled to hold peaceful demonstrations in front of the business premises of the employer, provided there is no obstruction caused to the entry into and exit from the business premises of the employer. The learned counsel for the 2nd respondent - Union also referred to the decision of the Kerala High Court in a case of Gwalior Rayons Silk Manufacturing (Weaving) Company Ltd., Calicut and another Vs. District Collector, Alleppey and others [1982 Lab.I.C. 367]. In the said decision also the right of the Union and its members to carry on peaceful demonstration was noticed and in that circumstance it was further taken into consideration that the Managements will no doubt be placed in perilous circumstances and if denied protection by the police may have to seek assistance from the Court and it may then be the duty of the Court to pass necessary orders to protect the life and property of such Management but such orders shall not be permitted to be used by the Police in any way to prejudicially affect the lawful agitation by the workmen. In such situation it is not the role of the Court to interfere with the right of the workmen to carry on their agitation so long as it is peaceful and does not turn violent. Such conclusion has been reached by referring to an earlier decision of that Court in the case of Kannan Vs. Superintendent of Police, Kannanur [1975 (1) LLJ 83] which is also referred to by the learned counsel for the 2nd respondent - Union.
10. A consideration of the factual matrix herein in the background of the legal position makes it evident that the 2nd respondent - Union and its members have a right in law to carry on with their agitation/demonstration in a peaceful manner and the same cannot be stifled by use of force either through the 1st respondent or in any other manner. At the same time, such right to carry on with the agitation should be exercised in a peaceful manner, without causing hindrance to the petitioner - Company to conduct its lawful activities in its premises. In that circumstance when the intervention of the police is sought by one party alleging violation of the same by the other party and action in that regard is sought, such competing rights of each party will have to be kept in view and it will have to be balanced in such manner so that the legal right of either party is not infringed.
11. In that background, it is noticed that the petitioner - Company has contended that some of the workmen whose services have been terminated had remained in the premises and have created a situation where the lessee under the agreement in question is not permitted to carry on its lawful activities. The 2nd respondent - Union in their objection statement have however contended that they are not inside the factory premises as it is locked and there is vigil by the security guards. It is contended by them that they are only carrying on peaceful agitation in a portion of the open area. But it is also stated by them that in view of the pendency of the dispute before the Industrial Tribunal, the status-quo is to be maintained. Such contention gives the indication that even if at present they are outside the work area of the factory, the intention as it appears is to thwart the effort of either the petitioner - Company or its lessee from commencing its activity without the members of 2nd respondent - Union being employed. Any action to that effect if leads to the commission of cognizable offences or creates law and order problem, it will not be permissible in law. In that view, even if a direction to evacuate may not be necessary by use of force; despite the right of non-interference to carry on with peaceful agitation at a distance, the 1st respondent - Police in any event will have to be directed to take note of the complaint submitted by the petitioner - Company and the action required in law, limited to that extent will have to be initiated. Merely because the dispute is pending and the same is under consideration by the Tribunal, it does not give any reason to make physical obstruction. The right as available would in any event be decided based on the material available before it and the relief in law would still be available.
12. In that light, the 2nd respondent - Union though may hold demonstration at a distance of fifty meters from the entrance to the factory premises of the petitioner - Company, there shall be no obstruction to ingress and egress as also to carryon the lawful activity of the petitioner - Company. Further, there shall also be no breach of peace or disturbance to the law and order situation by the 2nd respondent - Union or any persons claiming under them in an attempt to physically prevent the normal activities in the factory premises. In that regard if any complaint is made by the petitioner - Company, the 1st respondent shall take note of the same and provide assistance and protection to them to carry on its normal activities either by itself or by M/s.Expraco Composites India Pvt. Ltd., Bengaluru who are stated to have entered into an agreement with the petitioner - Company, through its employees who are willing to work. In doing so, the 1st respondent shall use the minimum force if the need arises and the continuation of lawful agitation at a distance without breach of peace shall not be prevented. All this will however remain without prejudice to the contentions of both the parties in the pending dispute in I.D. No.129/2015 which shall be considered on its own merits. The relief therefore is accordingly moulded in terms as ordered herein.
13. For all the aforestated reasons, the following:
(i) The 2nd respondent may avail the liberty of carrying on the peaceful agitation at a distance of fifty meters from the entrance to the factory without blocking the ingress and egress, nor shall they physically prevent its activities.
(ii) Despite the same, if there is physical obstruction to the activity of the petitioner or its lessee which gives rise to commission of cognizable offence or breach of law and order, the petitioner-Company may file an appropriate complaint with the 1st respondent.
(iii) If such complaint is filed, the 1st respondent is directed to take note of the same, assess the fact situation and take necessary action to prevent commission of such offence and ensure the safety of the petitioner - Company and its employees.
(iv) However, if the need for physical action arises, the bare minimum force required shall be used by the 1st respondent and the lawful agitation in a peaceful manner shall not be prevented.
(v) The petition is disposed of in the above terms with no order as to costs.