Madras High Court
D.Pugazhendhi vs The District Collector on 23 April, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.04.2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.10471 of 2012 D.Pugazhendhi General Secretary, Madras Labour Union, (Registration No.722) No.1, Strahans Road, Pattalam, Chennai-600 012. .. Petitioner Vs. 1.The District Collector, Chennai District Singaravelar Maaligai, Chennai-600 001. 2.The Tahsildar cum Executive Magistrate, Perambur Taluk, Chennai-600 011. 3.The Inspector of Police, Law and Order, P-2, Otteri Police Station, Chennai-600 012. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the second respondent herein to handover the possession of the union office building at No.176, Strahans Road, Pattalam, Chennai-600 012 to the petitioner herein. For Petitioner : Mr.G.Purushothaman - - - - ORDER
I. Prologue :
How, I remember, one afternoon when two men who were unknown to me and whom I had never seen before came to me to speak about the sufferings of the workers. They mentioned the Buckingham & Carnatic Mills of which I had heard vaguely but of which I knew nothing. They spoke to me for several minutes about the workers hurriedly swallowing their meal and running for fear of finding the door shut. It was at the New India office where I worked under Mrs.Annie Besant ...... My theosophistic spirit had the better of my political duties. I hired a coach and accompanied them to the mill where I saw the workers during the few minutes for food at the midday interval, swallowing a few morsels and running back lest they should be shut out. [Labour in Madras (Madras, 1921), pp.14-15 by B.P.Wadia]
2.These events led to the formation of the Madras Labour Union on 27.04.1918. Naturally B.P.Wadia, a Parsi Lawyer from Bombay and a member of Madras Theosophical society became its first President. The workers of Buckingham and Carnatic Mills led several work stoppages which finally led the management of Binny Mills filing a suit against the trade union leaders claiming damages and for perpetual injunction. This court had awarded damages of around Rs.7 lakhs and made the union leaders to pay for the damages personally for having caused loss to the employer. One of the leader of the union and an Advocate Sakkarai Chettiar told the judge in the open court as follows:
Honble Judge! I am an evangelical worker for the Wesley Mission. On behalf of the Mission, each Sunday I do biblical propaganda. I am getting Rs.10/- per week, with which I am living. I have no other property or other income. I have only my clothe which I am wearing and a few spare clothes at home. If necessary, I will remove my clothe and give it to the court. But the amount of compensation ordered by you cannot be recovered from me (as I have no other means). At the same time, I cannot be stopped from working for the trade union of workers. Even if my clothes are removed in execution of a decree, I will continue to work for the trade union by wearing my loin cloth. If necessary, we will go for work stoppages to win our demands.
3.B.P.Wadia, the President of the Madras Labour Union, also went as a delegate representing the Indian Labour at the International Labour Conference (ILC) held at Washington, U.S.A. The struggles of Binny workers and other workers throughout India forced the then colonial government passing the Trade Unions Act, 1926 in the Central Legislative Assembly. The Act significantly prevented an employer from suing his workers for damages or from filing criminal cases for conspiracy to destroy employers property. Thus the Madras Labour Union became the first labour union in Tamil Nadu to have espoused the cause of textile workers. In that process, it had gone through various stress and strains.
4.The present writ petition is filed by one D.Pugazhendhi claiming to be the General Secretary of the Madras Labour Union seeking for a direction to the second respondent Tahsildar-cum-Executive Magistrate, Perambur Taluk to hand over the possession of the trade union's office located at No.176, Strahans Road, Pattalam, Chennai to him.
II. The present Dispute :
5.The case of the petitioner was that during the year 2003, there was a dispute between the two rival groups headed by one Adhikesavalu representing one group and the another one led by Dheenan. Since a criminal case was registered in crime No.222 of 2003, the Inspector of Police, Otteri Police Station had forwarded a report to the second respondent which led the second respondent initiating proceedings under Section 145 Cr.P.C. He passed a final order on 09.10.2003. In that order, he had rejected the contention of parties that there was dispute among the trade union members and therefore Section 145 Cr.P.C. will not be attracted. On the other hand, he held that Section 145 Cr.P.C will apply to any dispute over the land or water including buildings. In the operative portion of the order, he had directed the parties as follows:
The connected records have been examined carefully and it is concluded that the complainant registered this case U/s.145 Cr.P.C. does not attract to deal and enquiry to proceed under 145 Cr.P.C. Hence, I hereby ordered that the A & B if aggrieved on any course of action they may move the appropriate authority for redressel of their grievances under the relevant act. In the light of the order passed, the Madras Labour union's building was kept under lock and key by the Executive Magistrate. Despite his direction, no one went to a Civil court to establish their title over the trade union's property.
III. B&C Mill under closure :
6.During the relevant time, the B&C Mills came to be closed permanently. Though there were initially some disputes regarding closure, finally the workers had settled their claims and after receiving compensations, they left the mill. The closure of the mill became irrevocable as the properties of the mill have been sold out to some real estate promoters. Yet the petitioner claiming to be the General Secretary of the Madras Labour Union (B&C mills) wrote a letter to the second respondent on 15.12.2008 stating that they have revived the union on 07.12.2008 and have also conducted a labour conference in which it was resolved to take necessary steps to recover the union office.
IV. M.L.U's claim :
7.The petitioner claimed that he and his followers are at present in the control of the trade union. In order to prove that they were conducting affairs of the union, he has produced several communications received from the Commissioner of Police, Corporation of Chennai, letters sent by the Department of Labour, Department of Handlooms and Textiles, PF Department as well as notice demanding property tax for the premises. In his letter dated 27.05.2011 addressed to the second respondent, the petitioner had stated that the union has been revived from the year 2008 onwards. There are about 2060 workers are at present functioning and are also conducting elections. Therefore, he had requested the second respondent to invite both parties to find out the truth and also to entrust the property to appropriate quarters. In the subsequent reminder letter dated 15.7.2011, he had changed his stand and requested the property to be handed over to his faction. It is the case of the petitioner that despite his queries with the Public Information Officer attached to Otteri Police Station regarding the progress of Crime No.222 of 2003, he had not been furnished with any information. It is in this context, he has approached this court for the relief set out above.
V. Maintainability of the writ petition :
8.It is not clear as to how such a writ petition is maintainable at the instance of the petitioner. Despite the second respondent had passed an order under Section 145 Cr.P.C., neither he nor any person had approached the civil court establishing their right to have control over the said property. On the other hand, the petitioner five years after the sealing of the premises claimed that they have revived their union and are in control of the affairs of the union. It is not clear as to how the union can be said to be functioning especially when the B&C mills have been irrevocably closed. Even as per bylaws of the union enclosed in the typed set, it is only persons who are working in the B&C Mills are entitled to become members of the Madras Labour union. Only existing workers can get elected to various committees through department-wise allotments. The petitioner had not disclosed as to who are the workers who continue to be the members of the M.L.U in the absence of there being no employment prospect for the workers.
VI. Nature of Section 145 Cr.P.C. Proceedings :
9.A proceedings under Section 145 Cr.P.C is summary in nature. The Supreme Court while dealing with the scope of proceedings under Section 145 Cr.P.C., vide judgment in Chandu Naik v. Sitaram B. Naik reported in (1978) 1 SCC 210 in paragraph 7 had observed as follows:
7.The Magistrate, in the first instance, will try to conclude the proceeding in accordance with the various provisions of Section 145 of the Code. If he is able to declare the possession of either party on consideration of the evidence adduced or to be adduced before him he would do so. In that event the other party will be forbidden from creating any disturbance of the possession [including the deemed possession, in case the application of the proviso to sub-section (4) is found necessary] of the party declared in possession. The Magistrate, then, will have to withdraw the attachment in accordance with the proviso to sub-section (1) of Section 146, because, as per his order declaring a party in possession there would be no longer any likelihood of the breach of the peace with regard to the subject of dispute. The party not found in possession by the Magistrate will have to seek the redress of his grievance, if any, elsewhere. If, however, the Magistrate decides that none of the parties was in possession of the disputed property on the date of the order made under sub-section (1) of Section 145 or if he is unable to satisfy himself as to which of them was then in possession of the subject of dispute he need not lift the attachment until a competent Court had determined the rights of the parties as provided for in Section 146(1). In such a situation, recourse, if necessary, may be taken to sub-section (2) of Section 146 of the Code either by the Magistrate or a civil court, as the case may be.
10.The Supreme Court has held that even after an order was passed under Section 145 Cr.P.C., the civil court will have power to pass an appropriate order whether interim order final and that will have to be given effect to by the Executive Magistrate vide its judgment in Shanti Kumar Panda v. Shakuntala Devi reported in (2004) 1 SCC 438 and in paragraph 23(4), it was observed as follows:
23.For the purpose of legal proceedings initiated before a competent court subsequent to the order of an Executive Magistrate under Sections 145/146 of the Code of Criminal Procedure, the law as to the effect of the order of the Magistrate may be summarized as under:
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(4) The court will be loath to issue an order of interim injunction or to order an interim arrangement inconsistent with the one made by the Executive Magistrate. However, to say so is merely stating a rule of caution or restraint, on exercise of discretion by court, dictated by prudence and regard for the urgent/emergent executive orders made within jurisdiction by their makers; and certainly not a tab on the power of court. The court does have jurisdiction to make an interim order including an order of ad interim injunction inconsistent with the order of the Executive Magistrate. The jurisdiction is there but the same shall be exercised not as a rule but as an exception. Even at the stage of passing an ad interim order the party unsuccessful before the Executive Magistrate may on material placed before the court succeed in making out a strong prima facie case demonstrating the findings of the Executive Magistrate to be without jurisdiction, palpably wrong or self-inconsistent in which or the like cases the court may, after recording its reasons and satisfaction, make an order inconsistent with, or in departure from, the one made by the Executive Magistrate. The order of the court final or interlocutory, would have the effect of declaring one of the parties entitled to possession and evicting therefrom the party successful before the Executive Magistrate within the meaning of sub-section (6) of Section 145.
11.Therefore, unless the petitioner moves the civil court, he cannot establish his right before this court that too in a writ petition under Article 226 of the Constitution of India. Even assuming that the petitioner is a lawfully elected office bearer of the Madras Labour Union, that does not give him any right to have control over the property of the trade union.
VII. Who can get the property :
12.Assuming that the union was to be dissolved, the property will not vest with the members as held by the Supreme Court vide judgment in Board of Trustees, Ayurvedic and Unani Tibbia College v. State of Delhi, 1962 Supp (1) SCR 156 = AIR 1962 SC 458. In paragraphs 10 to 12, it was observed as follows:
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14. If upon the dissolution of any society registered under this Act there shall remain, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the said society or any of them, but shall be given to some other society, to be determined by the votes of not less than three-fifths of the members present personally or by proxy at the time of the dissolution, or, in default thereof, by such court as aforesaid:
Provided, however, that this clause shall not apply to any society which shall have been founded or established by the contributions of shareholders in the nature of a joint stock company.
11.Now, the question before us is regard being had to the aforesaid provisions was the Board a corporation? Our conclusion is that it was not. The most important point to be noticed in this connection is that in the various provisions of the Societies Registration Act, 1860, there are no sufficient words to indicate an intention to incorporate; on the contrary, the provisions show that there was an absence of such intention. Section 2 no doubt provides for a name as also for the objects of the society. Section 5, however, states that the property belonging to the society, if not vested in trustees, shall be deemed to be vested in the governing body of the society and in all proceedings, civil and criminal, the property will be described as the property of the governing body. The section talks of property belonging to the society; but the property is vested in the trustees or in the governing body for the time being. The expression property belonging to the society does not give the society a corporate status in the matter of holding or acquiring property; it merely describes the property which vests in the trustees or governing body for the time being. Section 6 gives the society the right to sue or be sued in the name of the president, chairman etc. and Section 7 provides that no suit or proceeding in a civil court shall abate by reason of the death etc. of the person by or against whom the suit has been brought. Section 8 again says that any judgment obtained in a suit brought by or against the society shall be enforced against it. It has been submitted before us that Sections 6, 7 and 8 clothe the society with a legal personality and a perpetual succession; and Section 10 enables the members of the society to be sued as strangers, in certain circumstances, by the society, and the costs awarded to the defendant in such a suit may be recovered, at his election, from the officer in whose name the suit was brought.
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In Trade Union Law by N.A. Citrine (1950 Edn.) to which the learned Advocate for the petitioners has referred, it is stated at p. 143:
The object of this section (Section 9) was to provide a method of enabling legal proceedings to be brought in respect of the property of a registered trade union. Since the legislature had no intention of giving such unions corporate status with power to hold property and to sue and be sued in their registered names, it was necessary to provide for the vesting of their property in trustees and to permit them to bring or defend legal proceedings in respect of that property on the union's behalf. Section 8 of this Act, having provided for the vesting of the union's property in its trustees, the present section supplements that section by empowering the trustees to bring or defend, on the union's behalf, civil or criminal proceedings concerning its property.
12.In Bonsor v. Musicians' Union2 the position of a registered trade union in England came under consideration of the House of Lords in an appeal from the court of appeal. On a review of earlier decisions including the decision in Taff Vale Railway v. Amalgamated Society of Railway Servants1 Lord MacDermott, Lord Keith of Avonholm and Lord Somervell of Harrow held that a registered trade union was not a juristic person distinguishable at any moment of time from the members of which it was composed. After referring to the various provisions of the Trade Union Act, 1871 and some of the earlier decisions bearing on the question Lord MacDermott said:
I base this opinion primarily on the statutes. The more closely they are examined the clearer it seems to be that the legislature, though minded to bestow upon registered unions some of the gifts and attributes of legal personality, had no intention of doing more and was, indeed, averse to the idea of going the whole length and making those unions new creatures, distinct in law from their membership, and fundamentally different from the combination' of persons which the definition requires all trade unions to be.
13.In this context, it is necessary to extract Section 27 of the Trade Unions Act, 1926, which reads as follows :
27.Dissolution.(1) When a registered Trade Union is dissolved, notice of the dissolution signed by seven members and by the Secretary of the Trade Union shall, within fourteen days of the dissolution, be sent to the Registrar, and shall be registered by him if he is satisfied that the dissolution has been effected in accordance with the rules of the Trade Union, and the dissolution shall have effect from the date of such registration.
(2)Where the dissolution of a registered Trade Union has been registered and the rules of the Trade Union do not provide for the distribution of funds of the Trade Union on dissolution, the Registrar shall divide the funds amongst the members in such manner as may be prescribed. Similar provisions found in the Societies Registration Act came to be considered in Ayurvedic and Unani Tibbia College case (cited supra).
14.Bylaw No.28 of the Madras Labour Union clearly says that 75% of worker members should pass a resolution to dissolve the trade union. In case of dissolution of the trade union, the property will have to be entrusted only to the Pachaiyappa Trust Board which will utilize the fund derived thereunder to provide free scholarship to the children of the textile workers in Chennai.
15.Therefore, the petitioner claiming to be in control of the trade union without any real followers and seeking for entrustment of the property to himself is neither contemplated under Section 145 Cr.P.C. or even under the bylaws of the Madras Labour Union. The writ petition filed by the petitioner is thoroughly misconceived. This court is not inclined to entertain the writ petition. Hence the writ petition will stand dismissed. No costs.
vvk To
1.The District Collector, Chennai District Singaravelar Maaligai, Chennai-600 001.
2.The Tahsildar cum Executive Magistrate, Perambur Taluk, Chennai-600 011.
3.The Inspector of Police, Law and Order, P-2, Otteri Police Station, Chennai 600 012