1. The Petitioner No. 1 is a private limited company registered under the Companies Act and the factory is situated at L. B. Shastri Marg, Bhandup, Bombay 400 078. The Petitioner No. 2, is a shareholder and Managing Director of the petitioner No. 1 Company. The Company had employed about 215 workmen including supervisory staff in the said factory. The petitioners manufacture cutting tools and supply to the ordnance factories and other private industries, but the supply is mainly to the defence establishments. The petitioner Company was doing fairly well at all the material time. Accuracy is of prime essence in manufacturing of tools and that demands total concentration and discipline in the process of manufacturing of tools. Prior to 5th August, 1977, the petitioners were engaged in the manufacture of chains only, and on that day another company known as M/s. Repetition Parts Pvt. Ltd., engaged in the manufacture of special cutting tools was amalgamated with the petitioner company. The said M/s. Repetition Parts P. Ltd., had entered into agreement with their workmen concerning their service conditions and the said agreement was valid till March 30th, 1978. After the amalgamation the petitioner company continued to carry on the manufacturing activities in the two divisions namely Chain Division and Tools Division. The workmen in the Tools Division were governed by the terms of settlement signed by them with M/s. Repetition Part Pvt. Ltd. The petitioners claim that on August 5, 1978, the workmen of the petitioner No. 1 Company gheraoed eight of their officers for a period of 5 1/2 hours. The workmen were demanding that their wages which were due on 7th of the month should be paid forthwith. The petitioners further claim that after the gherao was lifted the workers with the instigation of their Union, which is a registered trade union Engineering Workers Union respondent No. 6, in this petition started giving threats to the officers and supervisory staff of the petitioner Company. It is the claim of the petitioners that the workers were earlier represented by Bharatiya Kamgar Sena Workers Union and on July 18, 1978, the Union had submitted a charter of demands in regard to their salaries and other benefits. It appears that the demands made by the workmen could not be decided due to financial difficulties and go slow tactics adopted by the workers and that has given rise to the gherao of the officers on August 5, 1978. The petitioners claim that on September 17, 1978, the Company wrote a letter to the Commissioner of Police pointing out that the workers instigated by the union leaders are threatening the officers and the staff of the Company and protection of the police is required to avoid the disturbine in the factory premises and outside the gate. The petitioner company offered to bear the charges for the additional Police Bandobust sought for protection of the property and persons of the office-bearers of the Company. It is the grievance of the petitioners that in spite of this letter the officers of the Bhandup Police Station declined to give any assistance. The petitioners claim that on September 22, 1978, the Officer of the Company was assaulted and thereafter again the Company requested the Police Officers of Bhandup Police Station to give protection but that request was also turned down. Thereafter on October 29, 1978, the workers again gheraoed the officers of the company and gherao was lifted only after the company sought intervention of the police authorities.
2. On October 30, 1978 an agreement was arrived at between the employer and the workers represented by the Union before the Conciliation Officer. This conciliation proceedings had commenced in view of the strike notice served by the Union on the Management on September 14, 1978. The terms of the settlement are annexed at Exhibit 'A', to the petition and it is necessary to set out some of the relevant terms of the settlement. They are as follows:--
3. It was agreed between the parties that the workmen shall resume normal work with effect from November 2nd, 1978. The Company agreed to give bonus at the rate of 8.33% of total earnings of the workers. The workers agreed to observe discipline and restore normalcy of work on resumption of work. The parties agreed that the representatives of the Union and the Company would mutually discuss the demands pending in conciliation and in case the parties fail to reach settlement on or before January 31, 1979, then the parties would make a joint application for referring the dispute to the Industrial Tribunal under Section 10(2) of the Industrial Disputes Act 1947. The workmen also agreed to make good the loss of production and assured that the production of the value of Rs. 2,40,000/-per month would be given.
4. The petitioners claim that in spite of this agreement the Union adopted obstructionist tactics and did not advice the workers to resume normalcy or to give the assured production. In fact the Union started making exhorbitant demands and the workers also started disturbance in the factory premises by giving catcalls, and threatening the officers who were on duty. The petitioners complained that these acts of indiscipline of the workers led to the stoppage of work and the negotiations could not proceed. Accordingly on January 11, 1979, the Company put up a notice on the Notice Board pointing out that in spite of various requests made by the management, acts of indiscipline by the workers continued. The workers were constantly catcalling, hooting drum beating and creating all sorts of disturbances including shouting of obscene slogans inside the compound and that has resulted into complete breakdown of discipline in the Company. The notice also recites that the workers are also hitting the managerial staff with steel pieces and waste cotton balls dipped in oil or water. The notice further states that these facts were brought to the notice of the Union leader Mr. Laghve, but the Union did not take steps to desist the workers from adopting such tactics. A copy of this letter was forwarded to the Assistant Commissioner of Labour and the Inspector of Police, Bhandup Police Station. On the same day the petitioners addressed 3 letter to the Union pointing out that the Union had no interest in negotiations as per the agreement arrived at between the parties on October 33, 1978 and therefore, a joint reference should be made to the Industrial Court for adjudication of the demands as agreed by the terms of the settlement. The Company also addressed a letter to the Deputy Commissioner of Police requesting for Police Bandobust at the factory. The Company reiterated that the workers are giving threats to the officers and there is likelihood of damage to the plant and equipment and so also the bodily harm to the officers and supervisory staff. The police were therefore requested to give proper assistance and the employer company offered to pay the charges for giving such assistance.
5. All these steps taken by the petitioner company had no effect on the Union or the workers and the acts of indiscipline continued. The company therefore addressed another letter to the Secretary of the Union on January 23, 1979, requesting the Union to advice the workers to desist from misbehaving and again seeking a joint reference to the industrial Tribunal for adjudication of demands. The Company made it quite clear that if the Union declined to take any steps in this connection the petitioners would be driven to declare a lock out in the factory. On receipt of this letter the Union served a strike notice on the same day on the management, under the provisions contained in Sub-section (1) of Section 24 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The annexure to this notice sets out the reasons for giving the notice and the reason given is that the charter of demands served on the management on July 18, 1978, is still not complied with. The Company immediately, on 25th January 1979, informed the Union that the strike notice served by the Union was entirely illegal as the Company was always willing to negotiate the demands and in any event as per the agreement dated October 30th, 1978. the Company is willing to make a joint application for a reference to the Industrial Court for adjudication of demands. The Company again called upon the Union to join the petitioners in making a joint application for reference and withdraw the strike notice. The Company again reiterated that the workers are instigated to indulge in indiscipline and acts prejudicial to the interest of the management. The company also addressed a letter to the Assistant Commissioner of Labour pointing out that the settlement dated October 30th, 1978, was clearly ignored by the Union by giving strike notice. The Union did not give any response to the request made by the company. In these circumstances, the petitioners declared a lock out in January 27, 1979, in accordance with the provisions of Sub-section (2) of Section 24 of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, with effect from 10th February, 1979. The statements of reasons annexed to the lock out notice sets out in detail the action of the workers and their union right from July, 18, 1978, onwards. The reasons given by the management are that due to the lawlessness and violence and continued go slow adopted by the workers and indecent demonstrations, it is impossible to continue to run the factory and the production of essential goods. It further states that the Union is not even willing to accept the offer of reference to the Industrial Tribunal as earlier agreed by an agreement dated October 30, 1978.
6. The declaration of lock out notice had no effect on the workers and their Union and they continued with their acts of indiscipline and threatened the officers with dire consequences. The workers prevented the Company from taking out the completed goods from the factory premises and that led to the riling of the complaint under the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, by the Company before the Industrial Court, Thane, and the complaint was numbered as Complaint (ULP) No. 8 of 1979. By this complaint, the Company contended that the workers and the Union are guilty of unfair labour practice and are preventing the officers from taking out the finished goods. The Industrial Court issued an ad interim injunction restraining the workers from preventing the company from taking out the finished goods from the factory premises also restraining the workers from adopting go slow tactics. The order of injunction was duly served on the Union leaders and was also displayed on the notice board, but in spite of that order, the workers continued to intensify their wrongful and illegal activities including the deliberate go slow obstruction to removal of materials and shouting obscene slogans. The workers prevented the management from bringing into the factory the materials required for manufacture of tools on February 10, 1979, and that led to the filing of the contempt proceedings against the workers and the Union leaders before the Industrial Court. The ad interim injunction granted on February 5, 1979, was confirmed by the Industrial Court on February 20, 1979, after hearing the workers and the Union Secretary. The petitioner Company also wrote a letter to the Chief Minister in the meanwhile on February 6, 1975, offering to run the factory on a co-operative basis under the Scheme to be proposed by the Government, but the worker? did not give any positive response to that suggestion.
7. In spite of the confirmation of interim injunction by the Industrial Court, the illegal activities of the workers instigated by the Union continued and the employer wrote two letters dated 22nd Feb. 1979 and Feb. 28, 1979, to the commr. of Police and the Officer in charge of the Bhandup police station complaining that the employers are not permitting the managerial staff to enter into the premises and are sitting around the factory gates. The petitioners requested that police assistance should be given by posting sufficient number of police On the factory gate to enable the petitioners to run the factory and continue the production. The petitioners did not receive positive response or assistance to their request. In the meanwhile due to the stoppage of production, the petitioners received several complaints from their customers including the Government of India, Ministry of Defence, and several orders booked earlier were cancelled. As stated earlier the goods manufactured by the company were required by the ordnance depot for production of defence weapons, and no supply of materials within time has caused prejudice to the production of the defence weapons. In this background the petitioner company was compelled to issue a notice of closure of their establishment on 3rd March 1979. This notice was in connection with the tool division of the factory and it is required to be stated that earlier a closure notice in respect of Chain Division was given on January 18, 1979. The notice dated 3rd March, 1979, for closure of the Tools Division of the factory was given as per the provisions of Section 25 FFA of the Industrial Disputes Act read with Rule 81 (a) of the rules framed under the Act. The notice inter alia states that the chain and tool divisions of the factory will be closed and the manufacturing activities will be stopped with effect from 3rd May, 1979, as the workers have resorted to an illegal strike and are squatting at the factory gate causing obstruction to the management and supervisory staff from entering the factory. It was also mentioned that individual notices of closure cannot be served on individual employees as the entire record la lying inside the factory and the management is not permitted by the workers to enter the premises. This closure notice has also no effect on the workers, and the Union and the Company wrote letters on March 12, 1979, April 17th 1979, and May 9th 1979, to the Home Department and to the Commissioner of Police, requesting for police protection to enable them to enter the factory and remove the goods therefrom. The petitioners complained that the workers instigated by the Union have committed offences under Sections 143, 341, 447 and 506 of the Indian Penal Code. The petitioners pointed out that except the offence under Section 506, the other offences are cognisable and in spite of the complaints made by the petitioners in that regard the Police Officers have failed to discharge their obligations and have declined to give requisite protection or to prosecute the offenders in a Court of law.
8. As the petitioners were unable to secure police assistance to enter the factory the petitioners ultimately filed the present proceedings under Article 226 of the Constitution of India on 11th June, 1979, seeking the writ of mandamus directing the Commissioner of Police and the State of Maharashtra to carry out their obligations and duty under the law including Criminal Procedure Code, 1973 and the Bombay Police Act 1951, and affording sufficient police protection to the petitioners in exercising their right of free and peaceful entry to the factory and to remove therefrom the goods and machinery and to transport the same to their destination.
9. The petitioners applied for interim relief and by my order dated June 15, 1979, after hearing the learned Government Pleader and the Advocate for the Union, I directed the concerned authorities to give necessary assistance to the petitioners to remove the goods from the factory premises. I am told at the bar that an appeal was carried against that order but the same was summarily dismissed by Division Bench.
10. The petitioners claim that it is the statutory obligation of respondents 1 to 5, to take prompt action and give protection to the citizens for protecting their properties and enjoying the same. The petitioners claim that they are entitled to close their establishment and it is not proper for the workers or their Union leaders to prevent the employer from taking out the goods and machinery from the factory premises. It was urged that in view of the decision of the Supreme Court, in Excel Wear v. Union of India : (1978)IILLJ527SC , it is open for an employer to close its establishment as the right to close its business is an integral part of the fundamental right to carry on the business. The petitioners claim that as the Police Authorities and the State Government have declined to give requisite assistance for removal of goods and the machinery from the factory premises, the petitioners are entitled to a writ of mandamus as their fundamental right to hold and enjoy the property has been denied.
11. On behalf of the respondents Nos. 1 and 5, a return has been filed disputing the reliefs sought by the petitioners. The police authorities claim that the petitioners are not entitled to protection inside the factory and the police authorities would intervene only if the law and order situation arises. The Police authorities contend that a situation had not arisen which would disturb the law and order and therefore, the Police authorities are not bound to give assistance to the employer. The authorities further claim that the Police would take action only if the violence take place and the report in that connection is made to the authorities concerned. The police authorities deny that there is a reasonable apprehension in the mind of the petitioners that they would not be permitted to enter the factory and remove their goods and machinery by the workers. On behalf of the State it was also claimed that the State is willing to give protection to the petitioners in public interest only on satisfaction that the situation has developed which threatens the law and order. On behalf of the Union also a return has been filed and it is inter alia contended that the workers were not at fault at any stage and the whole blame lies on the employers. The Union denies the several allegations made by the petitioners against the workers and claims that the notice of lock out and closure was given only with a view to defeat the rights of the workers. The Union also claimed that the notice of closure is not a genuine one but is a devise adopted for defeating the substantial rights of the workers.
12. In view of these rival contentions, it is first necessary to determine whether a situation has arisen which requires protection to the rights of the petitioners and whether the Police and State authorities are bound to give assistance to the petitioners for protecting and enjoying the property of the petitioners. Before adverting to the larger issue it is necessary to clear the deck by finding out whether the averments made by the petitioners are justified and whether there is reasonable apprehension in the mind of the petitioners that the petitioners would not be able to enjoy their rights without proper police assistance. I have ,set out the facts in detail in the earlier paras of the judgment and it would be clear from the several incidents from August 5, 1978, onwards that the workers and the Union are adopting obstructionist tactics and prevented the establishment to run and manufacture the tools in the factory. The Union has denied parawise each and every allegation made by the petitioners but the conduct of the petitioners by addressing various letters to the Police and State authorities leaves no manner of doubt in my mind that the workers instigated by their Union have acted high handed all throughout. The Union undoubtedly served a charter of demands on July 18, 1978, raising various demands and it is also true that these demands were not fully met with till August 5, 1978. But the methods adopted by the workers, whatever may be the grievance, are totally unlawful and indecent.
13. Mr. Pungalia, the learned counsel appearing on behalf of the Union very strenuously contended that the petitioners have not stated the whole truth and have made wild allegations attributing the illegal acts to the workers but it is not possible to accept the submissions in view of several letters written by the employers to the Commissioner of Police, right from September 17, 1978.
14. What has impressed me more is the fact that in spite of entering into an agreement dated October 30, 1978, before the Conciliation Officer, the Union has not cared to join for a joint reference to the Industrial Tribunal, Bombay, under Section 10(2) of the Industrial Disputes Act. The correspondence produced on the record by the petitioners unmistakably indicates that all along the employer was requesting the workers and the Union to desist from unlawful activities and to meet on the negotiations table. The employer even went ahead and requested for a joint reference but the Union has turned down all the suggestions made by the employer. It is difficult to imagine that the employer would try to prepare a false record right from September 17, 1978, onwards about the illegal activities of the workers only with a view to file a proceeding in this Court and to secure relief. The submission of Mr. Pungalia that the entire record is prepared with ulterior motive is very far-fetched and cannot be entertained. Looking to the conduct of the parties spread over for a large period and especially to the fact that the employer filed a complaint under the Unfair Labour Practices Act and secured an interim order in his favour which was confirmed after hearing the union is a tale tell fact to inindicate that the workers were in wrong all throughout. I am satisfied that the averments made in the petition about the unlawful activities of the workers are entirely correct and the denial of the union is without any substance. In this connection it must also be pointed out that the police authorities in their return have denied that the activities of the workers were such which would lead to violence and disturbance of law and order. I am not impressed by the statements made in the return filed by Inspector Sawant of Bandup Police Station in this connection. But I must also point out that Inspector Sawant has made statements on the basis of information supplied to him by the Head Constable on duty. Looking to the background of the situation I have no hesitation in holding that the petitioners are justified in having reasonable apprehension in the mind that the workers would not permit the management to enter the factory and to remove the goods and machinery belonging to the management.
15. Once having reached this conclusion, the question which arises for consideration is whether the petitioners are entitled to claim police protection or assistance for enforcing their right of entering the factory premises and enjoying their properties. Mr. Desai, the learned counsel appearing in support of the petitioners invited my attention to the provisions of Chapters X and XII of the Criminal Procedure Code, 1973. Mr. Desai, submitted that Chapter X enjoins upon the Police authorities to maintain public order and tranquillity, while the provisions of Chapter XII confers power upon the police to receive information and investigate the offence or attempt to commit such offence. These provisions undoubtedly require Police Officers to maintain the public peace. Mr. Desai also invited my attention to the provisions of Section 62 of the Bombay Police Act and pointed out that the Police Officer is enjoined to prevent cognizable and non-cognizable offences to the best of his ability. Chapter V of the Police Act, deals with special measures for maintenance of public order and safety and provisions of Section 47 onwards refers to employment of additional Police, recovery of cost thereof, the right of compensation. Section 47 requires the Commissioner of Police on the application of any person to depute any additional number of Police to keep the peace, and to preserve order at any place in the area under his charge. This section further provides that such additional police shall be employed at the cost of the person making the application. Section 48 deals with employment of additional police at large works and when apprehension regarding behaviour of the employees exists. The provision of Section 48 requires the State Government or Competent authorities to employ additional police when it appears that the behaviour or a reasonable apprehension of the behaviour of the persons employed on any manufacturing concerns necessitates the employment of additional police. Relying upon these provisions under the Bombay Police Act, it was urged by Mr. Desai that the Police Authorities are bound to give protection when a reasonable apprehension arises in the mind of a citizen that he would not be permitted to enter his property or to enjoy the same. Mr. Desai submits and I find force in the submission, that the Police authorities cannot refuse to exercise its powers by suggesting that the protection would not be given to an employer in public interest, Mr. Desai submits that it is not open for the police Authorities to deny assistance when enjoined by the statute merely because of certain policy decisions of the State Government. The provisions pointed out by Mr. Desai clearly establish that the Police Authorities are bound to give assistance as claimed by the petitioners.
16. Mr. Tijoriwala, the learned counsel appearing on behalf of the Police and State Authorities submitted that adequate protection was in fact given from February 2, 1979, onwards. According to the learned counsel two constables were posted in the area and one of them was asked to remain present at the gate. According to the learned counsel, this was sufficient protection. The learned counsel further submitted that the petitioners did not lodge any complaint in the Police Station during the relevant period save and except one complaint and in that also the name of the offender was not given. The posting of two constables at the gate is sufficient or not in the circumstances of the case need not be gone into, because the petitioners are not seeking relief in connection with the incidence which have already taken place. The sole relief claimed in the petition is in respect of entry to the premises and removal of goods and machinery from it, Mr. Tijoriwalla then submitted that it is the confirmed opinion of the State authorities that the police assistance is not to be given unless a situation develops which threatens public peace and order and the Police officers are not satisfied that such situation exists in the present case. There is clear misconception in the mind of the learned counsel while advancing this submission. The concept of public peace and order is something different from protection to an individual in respect of his property and enjoyment thereof. Take a case of a citizen who is not allowed to enter his own house by his brother because of certain dispute. The situation in that case may not lead to disturbance of public peace and order put if such citizen claims protection from the police authorities against his brother then it cannot be refused on the ground that public peace and order is not likely to be affected. The Constitution of India and various statutes have accepted the principle of acquisition and holding of private property and the Police authorities are enjoined to safeguard these interests. It is futile for the State and the Police Authorities to submit that the protection cannot be given to the citizen unless public peace and order is threatened. Realising this Mr. Tijoriwalla, in the alternative submitted that protection to a citizen would be given only if the Government is satisfied that a reasonable apprehension arises in the mind of a citizen that he would not be allowed to hold and enjoy his property. The learned counsel submitted that the question whether such a situation exists or reasonable apprehension arises is exclusively within the domain of the police authorities and it is not open for this Court, to disturb the conclusions arrived at by these authorities while exercising its jurisdiction under Article 226 of the Constitution of India. Mr. Tijoriwalla submits that the satisfaction of the Police Authorities is wholly subjective and cannot be disturbed by this Court even on proved facts. Mr. Tijoriwalla in this connection placed reliance upon the judgment reported in (1968) 1 All ER 763, in the case of Regina v. Commissioner of Police of the Metropolis. The facts which gave rise to this decision, in brief, are that on April 22, 1966, an instruction was issued from the office of the Commissioner of Police to the Senior Officers to the effect that no observations by police were to be kept in licensed or registered club for the purpose of detecting offences under the Betting Gaming and Lotteries Act (1963), As a consequence of this policy decision, the police observation was stopped, and the police did not attempt to enforce Section 32(1)(a) of the Act in large gaming clubs in London, A private citizen, Albert Raymond Blackburn, moved the Divisional Court for an order of mandamus directing the police authorities to assist in the prosecution of gaming clubs in the metropolitan police area. The Divisional Court refused the relief and while disposing of the appeal Lord Denning M. R. observed as follows:--
'Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the Chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter. He can also make policy decisions and give effect to them, as, for instance, was often done when prosecution were not brought for attempted suicide. But there are some policy decisions with which, I think, the Court in a case can, if necessary, interfere. Suppose a chief constable were to issue a directive to his men that no person should be prosecuted for stealing any goods less than 100 in value. I should have thought that the court could countermand it. He would be failing in his duty to enforce the law'.
17. Mr. Tijoriwalla relying upon this passage, submits that there is certain area where it is the absolute discretion of the Police authorities to decide whether they should take steps or otherwise. The learned counsel submits that the Court cannot disturb that discretion even if the statute enjoins upon the Police Authorities to enforce the provisions of law. The submission has no merits and must be rejected. The learned Judge observed that once a duty exists, there should be a means of enforcing it. The learned Judge observed as follows:--
'A question may be raised to the machinery by which he could be compelled to do his duty. On principle, it seems to me that once a duty exists, there should be a means of enforcing it. This duty can be enforced. I think, either by action at the suit of the Attorney General or by the prerogative writ of mandamus I am mindful of the cases cited by Mr. Worsley which he said limited the scope of mandamus. But I would reply that mandamus is a very wide remedy which has always been available against public officers to see that they do their public duty. It went in the old days against justices of the peace both in their judicial and in their administrative functions. The legal status of the Commissioner of Police of the Metropolis is still that he is a justice of the peace, as well as a constable. No doubt the party who applies for mandamus must show that he has sufficient interest to be protected and that there is no other equally convenient remedy. But once this is shown, the remedy of mandamus is available, in case of need, even against the Commissioner of Police of the Metropolis'.
This paragraph leaves no manner of doubt that Lord Denning M. R. has held in unequivocal terms that the mandamus is the proper and appropriate remedy when the interest of parties is to be protected and there is no other equally convenient remedy, Mr. Desai, invited my attention to the concurring judgment of Justice Salmon in the same case and relied upon the following observation :--
'The chief function of the police is to enforce the law. The Divisional Court left open the point as to whether an order of mandamus could issue against a chief police officer should he refuse to carry out that function. Constitutionally it is clearly impermissible for the Secretary of State for Home Affairs to issue any order to the police in respect of law enforcement. In this court it has been argued on behalf of the Commissioner that the police are under no legal duty to anyone in regard to law enforcement, if this argument were correct it would mean that in so far as their most important function is concerned, the police are above the law and therefore immune from any control by the Court. I reject that argument. In my judgment the police owe the public a clear legal duty to enforce the law a duty which I have no doubt they recognise and which generally they perform most conscientiously and efficiently. In the extremely unlikely event, however, of the police failing or refusing to carry out their duty, the court would not be powerless to intervene. For example, if, as is quite unthinkable, the chief police officer in any district were to issue an instruction that as a matter of policy would take no steps to prosecute any housebreaker, I have little doubt but that any householder in that district would be able to obtain an order of mandamus for the instruction to be withdrawn. Of course, the police have a wide discretion as to whether or not they will prosecute in any particular case. In my judgment, however, the action I have postulated would be a clear breach of duty. It would be so improper that it could not amount to an exercise of discretion'.
18. The learned Judge has clearly observed that the Court would not be powerless to intervene if the police fail or refuse to carry out their duty. The judgment relied upon by Mr. Tijoriwalla, instead of supporting his submission, really supports the claim made by Mr. Desai in that the satisfaction as to whether a situation existed which demands police assistance is not purely subjective but has to be determined by the Court on the materials placed before it.
19. In this connection Mr. Desai also placed reliance upon the decision of Mr. Justice P.S. Kailasam, (as he then was) of Madras High Court, in the case of A. S.V. Varadachariar v. Commr. of Police, Egmore, Madras reported in (1969) 2 M LJ 1. The learned Judge while considering the question whether it is the duty of the Commissioner of Police to determine whether the continued presence of the hut dwellers amounts to criminal trespass observed that the Commissioner can never take the plea that it is within his jurisdiction to take action or not.
The learned Judge placed reliance upon the decision reported in (1968) 1 All. E. R. 763, and held that the law enforcement officers owe a legal duty to the public to perform those functions which are raison d'etre of their existence. Mr. Desai also placed reliance upon the decision of the Mysore High Court reported in (1967) 2 Lab LJ 853: AIR 1969 Mys 51 in the case of Mysore Machinery . v. State of Mysore, wherein the Mysore High Court issued a writ of mandamus directing the Commissioner of Police to perform his duty and evict the workmen from the factory premises and to take action to prevent the commission of the offence by the dismissed workmen as to enable the employer to get exclusive control and possession of his premises. This decision leaves no manner of doubt in my mind that the High Court has power to issue writ of mandamus to the law enforcement officers to perform their duty. In my judgment the State police authorities were totally wrong in refusing to give police assistance as provided by the Bombay Police Act, to enable the petitioners to enter their factory and remove their goods and machineries therefrom.
20. Mr. Tijoriwalla then submitted that the petitioners have failed to bring on record the relevant material to establish reasonable apprehension about the threat of the workmen or the obstruction made by the workmen to the employer for entering into the factory premises and to remove the goods. This submission has no merits and has to be turned down, as I have pointed out earlier that more than enough material is brought on record to establish the reasonable apprehensions. The learned counsel then submitted that the High Court should not issue a writ of mandamus as there is alternative remedy available to the petitioners under Section 145 of the Criminal procedure Code. It is difficult to appreciate the merit of this submission. The relief sought in the petition is the assistance of the police to enter into the factory and remove the goods and machineries therefrom. Mr. Tijoriwalla does not dispute that the said relief is not possible under Section 145 of the Criminal Procedure Code and it that is so, it is futile to submit that the petitioner has alternative remedy.
21. A faint attempt was made by Mr. Tijoriwalla to submit that the petitioners are trying to change the location of the whole or part of the industrial undertaking and that contravenes the provisions of Section 13(1)(e) of the Industries (Development and Regulation) Act, 1951. The submission proceeds on the assumption that the petitioners have registered their undertaking under the Act to run the factory run in Bombay while the petitioners are malting efforts to shift this undertaking by taking out machineries to a place different from the one re-registered under the Act. Mr. Tijoriwalla in this connection pointed out to me the statements made by Smt. S. A. Vaidya, Under Secretary, Industries, Energy & Labour Department, in the return filed on 16th July 1979. It is stated in paragraph 6 of this return that the petitioners are shifting the entire machinery to Vapi, Gujarat and that contravenes the provisions of The Industries (Development and Regulation) Act, 1951, and therefore shifting of the machinery should not be permitted. The petitioners by their reply have clearly denied that they are shifting the machineries to Vapi. The entire submission of the learned counsel proceeds on an assumption that the petitioners are shifting the industry, Mr. Desai rightly submitted that nowhere in the petition the petitioners have stated that they are shifting the industry and assumption on the part of the State authorities is wholly unwarranted. Mr. Tijoriwalla submitted that if such shifting would amount to the contravention of the provisions of law, then I should not assist the petitioners by issuing a writ of mandamus. The submission cannot be entertained as the assumption on the part of the State Authorities is not warranted by any material on record.
22. The learned counsel appearing for the Union adopted the submissions of the State counsel and in addition submitted that the petition involves disputed question of facts and the petitioner should be asked to take proceedings or to proceed with the applications filed under the Unfair Labour Practices Act. I find no merits in this submission for the reasons already indicated hereinabove. The petitioners have already taken steps by filing the complaint before the Industrial Court under the Maharashtra Recognition of Trade, Union and Prevention of Unfair Labour Practices Act, but the claim made in this petition cannot be granted in these proceedings. Mr. Pungalia very fairly stated that in view of the decision of the Supreme Court reported in : (1978)IILLJ527SC (supra) it is open for the employer to close his establishment under Section 25FFA of the Industrial Disputes Act. But, according to the learned counsel, there is no actual closure but only a device is adopted to deprive the workers of their dues. It is submitted that the employer has previously given notice of closure but has not acted upon it and that fact would indicate that the present notice of closure is not genuine. It was also contended that the reasons given for effecting the closure of the establishment are not true and this action has been taken with a view to defeat the claim of the workers. It must be remembered that in these proceedings I am not considering either the validity of the lock-out declared by the employer or the validity of the closure of the establishment. The proper forum for determination of this question is Industrial Court and it is not really open for the workers to agitate the question in these proceedings. I enquired with Mr. Pungalia as to whether any proceedings have been adopted by the Union or the workers to get the lock-out declared as illegal or challenge the validity of closure notice. The learned counsel stated that till today no proceedings have been adopted. If that is the position, then it is futile to submit in the present petition that the closure notice was not genuine and was only a device adopted to defeat the claim of the workers.
23. Mr. Pungalia further contended that the notice of closure is bad in law and it is not even according to the prescribed form. There is no merit in this submisssion. The learned counsel appearing for the respondents submitted that under Rule 82 (a) it is mandatory to give notice of closure under form XVII-A and the petitioners have not strictly complied with that form. I find from the reading of the closure notice, which is annexed at exhibit L, collectively to the petition that it substantially complies with the requirements of the form, and merely because some of the details are not given would not make it illegal and ineffective. Mr. Pungalia submitted that the notice of closure was given in respect of Chain Division on January 18, 1979, while in respect of the Tool Division, it was given on March 7, 1979. It is required to be stated that though the strike notice was served by the Union only as regards the Chain Division, the employees of the Tool Division went on strike and indulged in illegal activities. Mr. Pungalia contended that both the notices are invalid for non-compliance of rules and form prescribed by the Act. It is not possible to accept the submission for the reasons given hereinabove. It was also suggested by the learned counsel that the contents of this notice are untrue and the submissions that the Company is suffering from financial losses is disproved by a letter addressed by the Company on January 18, 1979, itself to the Secretary of Ministry of Industries. It is not in dispute that the concern was never in financial crisis and it is difficult to accept the submission of the Union that the employer has closed the Undertaking only with a view to deprive the workers of their rights. The closure of business is going to cause loss to the employer also and in the circumstances of the case I am inclined to accept the submission of Mr. Desai that the closure was necessitated because of the unlawful tactics adopted by the workers and their union. Mr. Pungalia, the learned counsel submitted that the petitioner's claim that the Union refused to join in making a joint application for reference under Section 10(2) of the Industrial Disputes Act is incorrect. It is submitted that under the agreement dated 30th October 1978, the reference was to be made after 31st January 1979, if the negotiations failed. It was urged that the employer cannot ask the workers to join in application for reference prior to the date even if the negotiations are failed. The submission is without any substance and has to be rejected. It is difficult to comprehend why the Union should not join in filing application for reference when admittedly the negotiations have failed Mr. Pungalia then submitted that whatever may be the position this Court should not issue writ of mandamus giving directions to the Police Authorities and relied upon the decision of Privy Council, in Emperor v. Khwaja Nazir Ahmed, reported in AIR 1945 PC 18, and on the decision of the Supreme Court, in State of West Bengal v. S.N. Basak, reported in : 2SCR52 . I fail to appreciate how these two decisions assist the contention of Mr. Pungalia. In the two cases the information was lodged with the police authorities about the commission of cognizable offence and the police authorities started investigating the same. The respondents moved the High Court for preventing the Police Officers from proceeding with the complaint. The Privy Council and the Supreme Court have held that the powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure, and the police have statutory right to investigate into the circumstances and that power cannot be interfered with by the Court. I fail to appreciate how these decisions are applicable to the claim made by the petitioners in this case. Mr. Pungalia then invited my attention to the decision of the Kerala High Court reported in (1975) 1 Lab LJ 83, Kannan (C) & Superintendent of Police, Cannore and submitted that the Kerala High Court has recognised the right of the workers to peacefully agitate outside the factory gate. It is difficult to imagine how the decision would assist or help the Union in defeating the claim made by the petitioners. In fact some of the observations made in the Kerala High Court judgment go against the contentions raised by the Union. The Kerala High Court observed that the managements placed in perilous circumstances and denied police protection will have to seek assistance from the Court and it is then the duty of the Court to pass necessary orders to protect the life and property of such management.
24. Mr. Pungalia at one stage suggested that the hearing of this petition at an earlier date has caused prejudice to the interest of his clients and suggested that had the petition come up for hearing after 6 years the management would have come down on their knees and settled the dispute. Mr. Pungalia infact sought adjournment from time to time on the ground that the dispute can be amicably settled. I granted adjournment because I did not want the workers to be deprived of their livelihood but inspite of several adjournments no fruitful result was achieved. Mr. Pungalia's submission that the hearing should be further adjourned is without any merit and has to be turned down.
25. Mr. Tijoriwalla then submitted that even if the relief is to be granted to the petitioners the petitioners should be put on certain terms for safeguarding the rights of the workers. The learned counsel submitted, and in my judgment rightly, that even if the establishment is closed the workers are entitled to retrenchment compensation and the arrears of their salaries. Mr. Tijoriwalla therefore submitted that certain conditions should be imposed before issuing a writ of mandamus in favour of the petitioners. The learned counsel pointed out that the Union has claimed an amount of Rs. 27,90,000/- due from the employer towards arrears of salary, gratuity, retrenchment compensation, bonus, leave wages etc. The learned counsel submitted that though the claim appears to be excessive still it is necessary to make some provision to protect the rights of the employees. I find merit in this submission. Mr. Desai appearing on behalf of the petitioners, did not dispute that some protection is required before the grant of writ of mandamus and pointed out that in the petition itself the petitioners have agreed to give reasonable security to safeguard the interest of the workers. Mr. Desai submitted that neither the Union nor any of the workers employed by the petitioners have lodged a claim in respect of the retrenchment compensation or in respect of arrears of salary or any other wages. It is undoubtedly true that no such claim is lodged till today but that would not deprive the workers of their statutory rights. Mr. Desai submitted that his client is willing to furnish security for an amount of Rs. 4,00,000/-. In my judgment the petitioners should be required to give guarantee of Rs. 10,00,000/- before the writ is issued in their favour. The petitioners must give bank guarantee of a nationalised bank for an amount of Rs. 5,00,000/- (Rupees five lakhs) in favour of the Prothonotary and Senior Master of this Court and also furnish a solvent surety to the tune of Rs. 5,00,000/- (Rupees five lakhs) to the satisfaction of the Prothonotary and Senior Master of this Court. The petitioners will be entitled to remove the finished goods on furnishing the solvent surety and would be entitled to remove the machinery and plant only after furnishing the bank guarantee. It is open for the petitioners instead of furnishing surety or giving bank guarantee to deposit in cash an amount of Rs. 10,00,000/- in this Court with the Prothonotary and Senior Master.
26. The bank guarantee and surety would subsist provided any of the workers or Union files a claim for recovery of retrenchment compensation or arrears of salary within a period of six months from today. Even if such claims are lodged that would not conclude the contention of the workers that the closure notice was not valid. In case the claims are lodged within a period of six months then the amount covered by bank guarantee and surety would enure for the benefits of the workers and could be realised in enforcements of final orders which will be passed in applications filed by the workers. The bank guarantee and the surety would stand discharged in case the applications are not filed at the expiry of six months or such applications are dismissed or the employer directly pays to all the workmen.
27. Accordingly I issue the writ of mandamus directing the respondents Nos. 1 to 5, to give adequate police proprotection to enable the petitioners to enter their factory premises at Bhandup and to remove the finished goods and machinery therefrom, provided the petitioners furnish the surety of Rs. 5,00,000 before removal of goods and bank guarantee of Rs. 5,00,000 before the removal of the machinery to the satisfaction and in favour respectively of the Prothonotary and Senior Master of this Court. The respondents Nos. 1 to 5, will give assistance within a period of two weeks from the date the petitioners inform the authorities about the furnishing of such surety and bank guarantee respectively. The writ would remain in force for a period of 3 months from today and in case surety or bank guarantee is not furnished within that period then the Police Authorities are not bound to give assistance thereafter. In the circumstances of the case there will be no order as to costs.
28. Petition allowed.