1. The facts and the reliefs prayed for in both these petitions being substantially the same, they are dealt with together. The Criminal Miscellaneous Petition has been filed under Section 561-A, Criminal Procedure Code, against the respondents, the Commissioner of Police, Madras, and the Assistant Commissioner of Police (Law & Order), Southern Range, Madras, praying for a direction to the respondents to do their duty and evict the labourers (127 persons) from the factory premises of the petitioner at the close of working hours. The writ petition has been filed to issue a writ of mandamus or other appropriate direction to the respondents, praying for the same relief as in Criminal Miscellaneous Petition. It is stated (hat the writ petition has been filed by way of abundant caution in case it was felt that the Criminal Miscellaneous Petition could not afford and adequate remedy. The petitioner filed affidavits in support of both the petitions. The second respondent filed counter affidavits. The persons who were sought to be removed from the factory premises were impleaded as parties to both the petitions on their applications and they filed their affidavits.
2. The facts and the circumstances under which these two petitions have been filed are briefly as follows:
The petitioner is a Limited Company carrying on business of (he manufacture of fountain pen ink, having its registered office at No. 37-L, Mount Road, Madras, of which T.V. Advani is the Managing Director, who filed affidavits in support of the petitions. In the office of the petitioner, 21 clerks and others are employed. Adjacent to the office is the petitioner's factory in which 31 workmen are employed.
On the 18th September, 1967, twenty-seven persons mentioned in the affidavit assembled inside the factory and refused to carry out their duties at the instigation of the Union representing the said twenty-seven person and commenced what is called "stay-in-strike".
3. There is only one shift in the petitioner's factory which is from 8 A.M. to 5-30 P.M.. on Week days and 8 A.M. to 1 P.M. on Saturdays. Just before the closing hours of the factory on the 18th September, 1967, the striking workmen were requested by the petitioner's representatives to leave the factory premises as they had no authority to remain in the factory after working hours and this request was made as the petitioner wanted to lock up the factory premises after working hours, in which valuable stock-in-trade, machinery, etc. had been kept. As the said twenty-seven persons refused to Vacate the factory premises, the petitioner posted its Watchman to safeguard the property of the company. It is stated that eighteen of the workmen were willing to continue to work; but they Were prevented by the striking workmen from carrying out their duties by obstructing them by surrounding the machinery. The striking twenty-seven persons on 19th September, 1967 obstructed a lorry laden with packing cases consigned to the petitioner from entering the factory and the lorry had to return with the packing cases. On the 21st September, 1967, seven female employees were prevented from leaving the factory and were "gheraoed" for nearly by hours On the 22nd September, 1967, some of the striking workmen surrounded the petitioner's Accountant Mr. R. D. Chellappa and abused him in an attempt to intimidate him.
4. The petitioner made complaints to the Inspector of Police, 'J' Division, Saidape Madras-15, in respect of the incidents which took place on the 18th, 19th, 21st and 22nd September, 1967.:
5. As no effective action was taken by the police, the petitioner filed a suit O.S. No. 3890 of 1967, before the First Assistant City Civil judge, Madras, for an injunction (a) restraining the striking Workmen from obstructing the petitioner's lawful discharge of duties and preventing its loyal workers from carrying on their duties; (b) restraining the said persons from interfering With the petitioner's business; and (c) for a direction to the said twenty-seven persons to leave the petitioner's factory premises after the working hours. Pending suit, on the application filed by the petitioner, the Court granted an interim injunction restraining the striking workmen from collecting themselves in the premises, after the Working hours. On 22nd September, 1967, at about 5-15 P.M. the bailiff of the City Civil Court went to the petitioner's factory premises and in the presence of the Police, constables sought to serve the. order of interim injunction on the striking workmen. As they refused to receive the order, the bailiff affixed a copy of the notice in the notice board of the factory. The striking workmen, even after the order of interim injunction Was brought to their notice, refused to leave the factory premises after the working hours. Thereupon, the Managing Director of the petitioner-company contacted the first respondent and requested him to give assistance to the petitioner in evicting the striking workmen from the factory premises. The first respondent referred the petitioner to the second respondent and the 2nd respondent had declined to assist the petitioner. In respect of several incidents that occurred in the factory, the petitioner has been sending complaints to the Inspector of Police, J-1 Police Station, Saidapet for necessary action - vide letters dated 23rd, 25th and 27th September, 1967.
6. The complaint sent to Inspector of Police on the 27th September, 1967 discloses in detail, several incidents that occurred in the factory premises. The petitioner had requested the Inspector of Police to take appropriate action against the striking workmen who intruded on his property by scaling compound walls. It is submitted by the petitioner that the striking workmen are guilty of offences or criminal trespass (Section 441, Indian Penal Code), criminal intimidation (Section 5O3, Indian Penal Code) and preventing service of summons (Section 173, Indian Penal Code). It is further submitted that it is the duty of the police when cognizable offences are brought to their notice, as was done by the petitioner in this case, to take action under the provisions of the Criminal Procedure Code. It is also the duty of the police to evict the striking workmen after working hours from the factory premises as they have committed cognizable offences. As they have failed in their duty, the petitioner prayed that in the absence of satisfactory explanation by the respondents, a direction may be issued to the respondents directing them to do their duty and evict the striking workmen from the factory premises at the close of the working hours.
7. In the counter-affidavit filed by the second respondent, it is stated in respect o f the striking workmen remaining in the factory premises after working hours, it was purely a labour problem governed by the Industrial Disputes Act. In respect of the service of order of interim injunction, the second respondent stated that the striking twenty-seven workmen refused to receive the order of Court from the bailiff and a copy of the order was affixed on the notice board of the factory. It is also stated that the second respondent posted two police constables to do bandobust along with the armed reservemen at the factory premises to prevent any breach of peace which may likey to occur. He gave directions to the Inspector of Police, Saidapet Police Station, to keep close watch over the movements and activities of the striking workmen. The second respondent further stated that he was visiting the factory periodically and found that the workmen had not resorted to any Violence or acts of intimidation. According to the second respondent, the striking workmen had not committed any cognizable offence to warrant the interference by them. They had not committed the offence of criminal trespass and there is no duty cant upon the respondents to evict the striking workmen from the factory premises after the working hours. It is also contended that as the matter has been taken to a civil Court and as it is sub judice the police cannot take any action.
8. sOn behalf of the striking workmen affdavit was filed by one Section Sethuram, the Secretary of the Chelpark Employees' Union and one of the striking workmen. It may not be necessary to mention the details of the affidavit excepting to note that it is admitted that the striking workmen have been staying in the factory premises even after the working hours. It is also denied in the affidavit that the striking workmen refused to receive the copy of the interim injunction order sought to be served on them. It is further stated that the stay-in-strike is legal.
9. The undisputed facts are these: (1) The striking workmen remained in the factory premises after the working hours (2) the order of injunction by the City Civil Court restraining them from collecting inside the factory premises after working hours was served on the workmen by affixture of the copy of the order on the notice board of the factory premises; - though in the affidavit filed on behalf of the workmen it is stated that it was not Served on them, in the counter-affidavit filed by the second respondent; it is admitted that the service on the workmen was made by affixture; and (3) the petitioner has filed complaints in respect of the incidents which occurred in the factory premises, vide letters dated 23rd, 25th and 27th September, 1967.
10. The substantial contention raised by the respondents is that the acts alleged against the striking Workmen and their remaining in the premises of the factory after the working hours do not disclose a cognizable offence and there was no breach of any statutory duty cast upon the respondents so as to entitle the petitioner to a writ of mandamus or a direction under Section 561-A, Criminal Procedure Code.
11. It becomes, therefore, necessary to consider whether the striking workmen remaining in the factory after the working hours, will amount to criminal trespas (sic) non-violent and the employees had done nothing more than occupying their seats during office hours. The strikers never obstructed or prevented the co-workmen from doing their work; nor had the insulted they employers or intimidated them. The only act alleged in that case against the striking workmen was (hat they refused to vacate their seats When they were asked to doso by the superior officers, during working hours. But in the present case, the striking workmen after having entered the factory premises refused to leave at the close of working hours and remained in the factory premises during day and night. They refused to receive the order of injunction sought to be served on them. It is alleged that the striking Workmen have been threatening their co-workers and preventing them from carrying out their duties by obstructing them and by surrounding the machinery. It is also alleged that the striking workmen obstructed a lorry laden with packing cases consigned to the petitioner from entering the factory and they prevented female employees from leaving the factory and that some of the striking workmen surrounded the petitioner's accountant and abused him in an attempt to intimidate him. These facts are borne out by letters written by the petitioner to the Inspector of Police. Saidapet. I am inclined to accept that the incidents mentioned above had occurred in the factory as the Inspector of Police to whom letters Were addressed had not controverted the allegations made in the petitioner's affidavit. It can, therefore, be seen that the striking workmen in the present case not only remained after working hours; but also they were not peaceful and non-Violent.
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 observaion 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.
22. It has now to be considered whether fir's Court has got powers under Section 561-A, Criminal Procedure Code, to direct the respondents to evict the striking workmen and to do their duty enjoined on them.
23. Section 561-A, Criminal Procedure Code, reads thus:
Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
This section emphasizes that the High Court has the widest jurisdiction to pass orders to secure the ends of justice as it is the superior Court of jurisdiction. This section does not give new powers; but preserves the inherent powers of the High Court. In Emperor v. Nazir Ahmad L.R. 71 I.A. 203 : I.L.R. (1945) Lah. 1 : (1945) 1 M.L.J. 86 : A.I.R. 1945 P.C. 18, the Privy Council considering the object and scope of Section 561-A, Criminal Procedure Code, observed as follows:
It is not correct to say that Section 561-A has given increased powers to the Court which it did not possess before that section was enacted. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of the Criminal Procedure Code.
24. The High Court is not only a Court of law but a superior Court of Justice. If the High Court feels that in a particular case, the ends of justice require that an order should be made in an application, although the application is not contemplated by the Code, it will entertain the application and make the necessary orders to secure the ends of justice.
25. The High Court in exercising its extraordinary powers under Section 561-A,. Criminal Procedure Code, will take into consideration the gravity of the injustice brought to its notice and the non-availability of an eifective remedy otherwise. This power will be used sparingly in deserving cases. I am of opinion that the High Court can direct the executive where cognizable offences are committed or where there is threat to property and person, to take appropriate action to secure the ends, of justice. It has been contended by the learned Counsel for the workmen that the powers under Section 561-A, Criminal Procedure Code, cannot be invoked to give direction to the Police Officers even in respect of invetigation and appropriate action, in cognizable offences as it will amount to interference with the duties of the police-Reliance has been placed on the following passage in Emperor v. Nazir Ahmad L.R. 71 I.A. 203 : I.L.R. (1945) Lah. 1 : (1945) 1 M.L.J. 86 : A.I.R. 1945 P.C. 18:
In their Lordships' opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted ;f found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there :s a statutory right on the part of the police to investigate the cirumstauces of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, to an unfortunate result if it should be held possible to interfere with thore statutory rights by an. exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual I berty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case
26. What the Privy Council was concerned in that case Was whether the proceedings taken in pursuance of the first information report could be quashed under Section 561-A, Criminal Procedure Code. It was contended that the first information report did not disclose a cognizable offence and the Police Officer, had taken up investigation without the order of the Magistrate and that such investigation Was illegal and that on that account, the proceedings of investigation should be quashed. This decision makes it clear that the Courts cannot interfere with the investigation. by the police; nor can they direct them to proceed in a particular manner in investigation. Nor can the regularity or the legality of the proceedings in the course of investigation 6e questioned by the Courts.
27. Section 156(2), Criminal Procedure Code, says:
No proceeding of a Police Officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
28. But, however, if the police refused to take up investigation in a cognizable offence, which is a statutory obligation imposed on them, the Court can certainly direct the police to perform its statutory duty to secure the ends of justice. Even in a cognizable offence, if the police do not take up investigation, a Magistrate under Section 156(3), Criminal Procedure Code, may order investigation. When a Magistrate can order investigation, can it be said that this Court has no power to order investigation and direct the police to do its duty. The decision of the Privy Council cannot be taken as laying down the principle that the Court cannot direct the police to investigate any cognizable offence. But what it says is, the Courts cannot interfere with the actual performance of the duties of the police.
29. The Supreme Court in State of West Bengal v. Section M. Basak , following the principle laid down in Emperor v.
Nazir Ahmad L.R. 71 I.A. 203 I.L.R. (1945) Lah. 1 : (1945) 1 M.L.J. 86 : A.I.R. 1945 P.C. 18, held that the investigation of the cognizable offence cannot be interfered with when no charge has been laid. That was also a case where a petition was filed under Sections 439 and 561-A, Criminal Procedure Code, to quash the police investigation on the ground that it was done without jurisdiction.
30. I am, therefore, of the view that to secure the ends of justice, the High Court in its inherent powers under Section 561-A, Criminal Procedure Code, can direct the Police Officer to his duty which he has failed to do. It is of course true that if an effective alternative remedy is available, the powers under Section 561-A, Criminal Procedure Code, cannot be resorted to and such powers being extraordinary powers, shall be exercised only in exceptional cases where grave injustice is brought to the notice of the Court.
31. It is contended that in this case, alternative remedies are a vailable to The petitioner and that if a cognizable offence is disclosed, the petitioner can move the Magistrate for redress and that the discretionary power of this Court under Section 561-A, Criminal Procedure Code, or for issuing a writ of mandamus against the respondents could not be invoked. No doubt it is true that the petitioner can move the Magistrate; but I do not think the remedy sought for in these petitions can be achieved expeditiously. The law gives the petitioner a right to approach an executive Officer like the police to give him protection and take appropriate action in cognizable offences. The Police Officers alone, when they are satisfied that cognizable offences are being committed, can take expeditious action contemplated by law. The effective remedy which is prayed for in this case is for the removal of the striking workmen after working hours from the factory premises. The Magistrate cannot give a relief for a remedy of this nature; but he may have to direct the police to make enquiry and submita report and he has to see, any order passed by him, executed through the machinery of the police.
32. The Division Bench of the Mysore High Court in W.P. No. 1021 of 1967 in negativing a similar contention raised in that case, observed as follows:
It was lastly contended by the learned Government Pleader that the petitioner should have approached the Magistrate for redress and that as he had rot availed himself of that alternative remedy open to him under the law, this Court should not use its discretionary power of issuing a writ of mandamus against the respondents We do not think that the failure of the petitioner to approach the Magistrate in a particular case either debars him from approaching this Court-or debars us from exercising our discretionary power of assuinga writ. The most expeditous remedy contemplated by law and the right of protection give by law is that of approaching an eixecutive officer like the police; the various provisions of the Code of Criminal Procedure and the Mysore Police Act do indicate bifurcation between the powers are duties of the police and those of a Magistrate. The nature of the remedy sought for by the aggrieved party is also a decisive factor. The most expeditious action contemplated by law is an approach to the police who when they are satisfied that cognizable offences are being committed, can take immediately preventive measures as also punitive measures. In the present case, what has been sought for is a preventive measure, preferably for removal of the dismissed workmen from the premises of the factory to facilitate the working of the factory. Even if a Magistrate were approached by the petitioner, the Magistrate would have to direct the police to make an enquiry and submit a report as to what is required to be alone. In other words, the Magistrate himself has got to see that his order is executed through the machinery of the police. That is why in cognizable offences the law requires the police to U-ke action without waiting for the orders of the Magistrate.
With these observations, I respectfully agree.
33. It is also contended by the respondents that the petitioner should have resorted to the provisions under the Industrial Disputes Act as there is a dispute between the petitioner and the workmen. It appears, uncler Section 10(i) of the Industrial Disputes Act, the Government alone, if it is of opinion that any industrial clirpute exists or is apprehended, may by order in writing refer the dispute to a Labour Court for adjudication. The discretion to ref r the dispute is left to the Government. The Government cannot be compelled to refer the depute. Under Section 10(3) of the Industrial Disputes Act, the Government may prohibit the continuance of any strike or lock-out where an industrial dispute has been referred to the Labour Court, Tribunal or National Tribunal. These provisions make it clear that this remedy is not open to the petitioner though he could apprise the Government of the existence of the dispute. It is further contended that the matter is sub judice as the petitioner has gone to a civil Court and the matter is pending before it. The pendency of the suit cannot be a bar for taking action by the police if cognizable offences are disclosed or a breach of the peace is likely to occur. In this case, the order of injunction was passed against the striking workmen from collecting within the factory premises after working hours. The police should have given effect to the order of injunction by dispersing the striking workmen against whem the said order was passed. It is, therefore, not necessary for the police to consider whether any alternative remedy is available to the petitioner or any dispute is pending before any Court. They are only concerned to see whether the incietents complained of disclosed a cognizable offence or at least there are reasonable grounds to believe that, such cognizable offences were committed or likely to be cemmittcd. If the police had come to the conclusion that the striking workmen had committed a cognizable offeree, it was their statutory duty to take appropriate action.
34. It appears that in this case the respondents have been under the impression that the striking workmen remaining in the factory premises after working hours does not disclose a cognizable offence. If they had known that a cognizable offence was committed, they Would have certainly taken necessary action. As I have now found that the striking workmen had committed the offence of criminal trespass and they formed themselves into an unlawful assembly by remaining after working hours in the factory premises, the respondents would take necessary appropriate action. The respondents have got various measures in giving relief to the petitioner. They can direct the striking workmen squatting within the factory premises after working hours to disperse and remove them from the premises of the factory. As already stated, under sect on 127, Criminal Procedure Code, the officer in charge of a police-station may command any unlawful assembly likely to cause distribance of the public peace, to disperse. In this case, if the petitioner and the willing workmen had resisted the striking workmen remaining after working hours in the factory, it would have resulted in a breach of the peace. This is a fit case where the respondents can take action under Section 127 (1), Criminal Procedure Code. They raay arrest the striking workmen as cognizable offences are disclosed and investigate and file charge-sheets, if there is a. prima facie case. It is a matter for the police in this, case to decide what they should do and what course they should adopt in order to give an effective relief to the petitioner.
35. It is no doubt true that the capital and labour should contribute equally for its development and progress and the rights and interests of both the employer and employees should be protected. But, if they transgress the bounds of law and create an atmosphere 1 Icely to affect law and order, which are the fovindations of the civilised society, the police should not lag behind to do its statutory duty of taking appropriate action contemplated by law. Otherwise, there will be chaos and confusion in the country affecting the normal avocations of people. The powers and duties of the police are directed, not to the interests of the police, but to the protection and welfare of the pubic.
36. As I have found in this case that the striking workmen remaining after working hours in the factory premises committed the offence of criminal trespass and formed themselves into an unlawful assembly, the respondents are directed, to disperse and remove such of those persons who remain in the said premises after working hours, if necessary with the assistancer of their subordinate and take n eh appropriate action as they may think fit in the circumstances of the case. Crl. M.P. No 2250 of 1967 is allowed.
37. On the view I am taking in the Criminal Miscellaneous Petition. T do not think it necessary to issue a writ in the nature of mandamus to the respondents directing them to do theirstatutory duty as I am sure that the respondents, being responsible officers, would certainly take necessary effective stepson the lines mentioned in the judgment. With these observations, W.P. No. 2825 of 1967 is dismissed.
38. No costs.