Delhi District Court
Holiday Club vs Holiday Club Employees Union on 23 December, 2011
IN THE COURT OF MS. NEHA, CIVIL JUDGE03(SOUTH),
SAKET COURT COMPLEX, NEW DELHI
Suit no. 765/10
Unique ID no. 02406C0471872010
IN THE MATTER OF:
Holiday Club
DBlock, Panchsheel Enclave,
New Delhi110017
Through its General Secretary ......Plaintiff
Versus
Holiday Club Employees Union
DBlock, Panchsheel Enclave,
New Delhi110017
Through its President/Secretary ......Defendant
DATE OF INSTITUTION : 04.09.2010
DATE OF RESERVING THE ORDER : ORAL
DATE OF DECISION : 23.12.2011
JUDGMENT
(Suit for Permanent Injunction)
1. Vide this judgment I shall dispose off the suit of the plaintiff for permanent injunction.
CS.No. 765/10 Page 1 of 27
2. Plaintiff's Case: The plaintiff club is mutual benefit association, registered under the Societies Registration Act vide registration no. S7352. The club is having different categories of members such as (i) Permanent members (House owners of Masjid Moth Residential Scheme) and (ii) dependents of the house owner members. Plaintiff Club is situated in Panchsheel Enclave, South Delhi and is carrying out different activities for its members and their children. In terms of Bye Laws of the club the management committee of the club is having the tenure of two years and present Management Committee was elected on the last election which took place on 30.08.2009. Mr. S.K. Sharma is the General Secretary of the club and is authorized to file the present suit.
3. The defendant, Holiday Club Employees Union, is the association of the employees of the plaintiff club. Just before expiry of tenure of the last Management Committee, the defendant union raised a chartered of demand and ultimately it entered into a settlement on 06.02.2009 with the club by virtue of which 17.5% increase in basic pay salary was given to the employees on the rolls of the club with effect from 01.03.2009. It was further agreed by CS.No. 765/10 Page 2 of 27 the defendant union that the aforesaid settlement / agreement will be binding on both the parties for two years .i.e. till 1st March 2011.
4. Vide order dated 09.03.2010 Govt. of NCT Labour Department revised the minimum rates of wages under Minimum Wages Act. The Management of the club as an obligation under the law vide its order dated 09.06.2010 increased the VDA under Minimum Wages Act and all the arrears were paid to the staff of the club. In spite of receiving the arrears, the defendant union approached the Labour Department and made false complaint against the plaintiff club. In the proceedings before the Labour Officer on 15.07.2010 the club filed the statement that the salary is being paid as per law, and the labour Officer closed the proceedings. However when the union continued to insist their demand they were advised by the Labour Officer that they can go under Industrial Disputes Act if they are still not satisfied.
5. Vide letter dated 03.08.2010 addressed to the Chairman/General Secretary of the club, the defendant union threatened to observe Protest Black Day from 04.08.2010 by wearing black badges while doing their duties. The management of CS.No. 765/10 Page 3 of 27 the club vide letter dated 04.08.2010 addressed to the President of the Union asked the employees to continue to work without any interruption and assured that whatever is payable to the employees is paid to them.
6. Vide letter dated 07.08.2010 the defendant Union threatened to go on strike and protest if their alleged demand is not acceded to by the club. The management committee held meeting with all the employees where all the employees were made to understand that they have been paid their salary as per law and there is no justification in the demand raised by the union. The office bearers of the defendant union are misleading the employees of the club and are forcing them to stop the operations of the club and even stopping other workers who are engaged casually from performing their duties.
7. On 21&22.08.2010 without any notice or intimation few office bearers of the staff forced the entire kitchen and service staff to suspend the operation of the club and for more than two hours from 7.00 pm to 9.00 pm. The entire club functioning was severally disturbed. During that period the members of the defendant union not only raised slogans but also disturbed the members and CS.No. 765/10 Page 4 of 27 obstructed them from entering club. Slogans were also raised in front of the gate of the club. Employees who were willing to work were obstructed forcibly from entering the club and even the members of the club were obstructed from entering the club.
8. The office bearer of the union indulged in the illegal and completely unwarranted activities which are not permissible and justifiable by law. Defendant union is now threatening that they will shut down all the activities of the plaintiff club and are even threatening to damage the property of the club. The club is hosting an event namely "Geetonbhari Sham" on 04.09.2010 in which the club is expecting more than 500 members to participate. There is also a dinner hosted by one of the member in the banquet hall on 04.09.2010. Defendant union in a preplanned manner to disturb function of the club which is due on 04.09.2010 and other various activities sent a letter dated 02.09.2010 giving 48 hours ultimatum to accept their illegal demands, failing which they will resort to direct action from 04.09.2010 onwards.
9. The said letter was received by the plaintiff club at around 5.10 pm on 02.09.2010. The defendants are threatening to prevent the ingress or egress of the willing workers who want to work and CS.No. 765/10 Page 5 of 27 members of the club from entering the club. The defendant have further threatened to hold demonstrations at the residence of the office bearers and the members of the Executive Committee though it is specifically prohibited under provisions of Industrial Disputes Act.
10. The threatened action of the defendant union is not only illegal but also unwarranted. The threatened action is likely to cause, not just disturbance in peace, but will also affect the peaceful and conductive environment of the club. Hence the plaintiff has filed the present suit for permanent injunction thereby restraining and prohibiting the defendant, agents, members, associations etc.
(a) from holding any demonstration, dharna, gherao, slogan, shouting and hooliganism at least 100 meters from the premises/boundary wall of Holiday Club, DBlock, Panchseel Enclave, New Delhi and also from the residences of the members of the Executive Committee of the club.
(b) From blocking ingress and egress of the plaintiff, its employees, caterers, office bearers and visitors etc. in the club.
(c) Direction to the SHO of the area concerned for the compliance CS.No. 765/10 Page 6 of 27 of order.
11. Defendant's Case:
The defendant has filed WS taking preliminary objections that the suit of the plaintiff does not disclose any cause of action against the defendant union and the suit is barred under Section 18 of the Trade Union Act,1926. The subject matter of dispute between the parties is covered under provisions of Industrial Disputes Act, 1947. The defendants have always taken up their grievances as representative of workers in a peaceful manner and they have never committed any tortuous act. The plaintiff club is itself responsible for denying the benefit of enhance variable DA w.e.f. 01.02.2010 which the employees were earlier getting for many years on the lines of increase of VDA made by the Govt. of NCT of Delhi in the month of February and August every year, to the employees on wrong pretext despite number of settlement entered into between the club management and employees through the defendant union. The action of the plaintiff club amounts to unfair Labour practice as per Section 2(ra) read with Vth Schedule of Industrial disputes Act, 1947.
12. Further the defendant has denied the allegation of the CS.No. 765/10 Page 7 of 27 plaintiff in the plaint and has submitted that there existed very good relationship between the employees union and the management and it is for the first time the management has misunderstood the defendant union. Earlier also there was settlement between the management and the employees union in the year 2001, 2004 and 2007 and the demands of the employees were always legal and justified.
13. The defendant has denied that the management has enhanced VDA of employees as per existing practices prevalent in the club and instead it has curtailed the facilities of enhancement of VDA on the line Govt. of NCT was increasing in the past. The protest letters were sent to protest against the injustice done to employees and the union as well as the employees have been protesting in a constitutional and peaceful manner and never disrupted the smooth functioning of the business of club.
14. Many of the employees have worked for long 20 years or more and they have got unblemished record of good service with the club. The management has refused these employees to resume duty w.e.f. 04.09.2010 on the pretext of the court interim stay order and suspended some of them from service on the basis of CS.No. 765/10 Page 8 of 27 false and fabricated charges. It is also submitted that the present matter is covered under provisions of Industrial Dispute Act 1947 and the remedy is available under the provisions of said Act. Further the defendant has denied that the union or its members are threatening the management of disruption of smooth functioning of business.
15. The plaintiff has filed replication to WS in which the contentions of the WS are denied and allegations in the plaint are reasserted.
16. From the pleading of the parties following issues are framed:
(1) Whether the suit of the plaintiff is barred under Section 18 Trade Union Act? OPD (2) Whether the suit of the plaintiff is not maintainable in view of the provision of the Industrial Dispute Act, 1947? OPD (3) Whether the plaintiff is entitled to decree of permanent injunction? OPP (4) Relief, if any.
17. Plaintiff has examined Sh. S.K. Sharma, Secretary of the plaintiff club as PW1 who tendered his evidence by way of CS.No. 765/10 Page 9 of 27 affidavit Ex. P1. PW1 has relied upon following documents:
(i) Rules and ByeLaws of the plaintiff Club is Ex. PW1/1
(ii) Copy of settlement dated 06.02.2009 is Ex. PW1/2
(iii) Copy of management decision to pay increased VDA under Minimum Wages Act is Ex. PW1/3
(iv) Copy of notice dated 09.07.2010 is Ex. PW1/4
(v) Copy of letter dated 03.08.2010 is Ex. PW1/5
(vi) Copy of letter dated 04.08.2010 is Ex. PW1/6
(vii) Copy of letter dated 07.08.2010 is Ex. PW1/7
(viii) Copy of letter dated 02.09.2010 is Ex. PW1/8 On the other hand, defendant has examined two witnesses in its defence, Sh. Jagdish Prasad Sharma as DW1, who tendered his evidence by way of affidavit Ex. DW1/A and Sh.
Ajay Kumar as DW2 who has tendered his evidence by way of affidavit Ex. DW2/A.
18. I have perused the material on record and carefully considered the submissions of Ld. counsel for the parties. My issue wise findings are as under:
Issue no. 1 and 2
19. Issue no. 1 and 2 are taken together as both the issues CS.No. 765/10 Page 10 of 27 require common discussion. The onus to prove these issues was on the defendant. The defendant union has examined Sh. Sh. Jagdish Prasad Sharma as DW1 and Sh. Ajay Kumar as DW2. Neither DW1 nor DW2 in their affidavit has stated that jurisdiction of civil court is barred under either Trade Union Act or Industrial Disputes Act. Ld. counsel for the defendant has argued that jurisdiction of civil court is barred under Trade Union Act and Industrial Disputes Act. The alleged act of the union is covered under unfair labour practices under Industrial Disputes Act and remedy is provided in the Act itself.
20. Ld. counsel for the plaintiff has argued that the Labour court does not have jurisdiction to grant relief of permanent injunction and the Act does not bar jurisdiction of civil court. He has relied upon judgment of Hon'ble High Court of Delhi in Indian Express Newspapers vs T.M. Nagarajan and ors 1987 (15) DRJ 212 and M/S SUPERIOR CRAFTS VS. CENTRE OF INDIAN TRADE UNIONS and ors. 2008(119)FLR 614.
21. The judgments relied upon by the plaintiff have also dealt with the issue of permanent injunction in case of strikes, demonstrations, etc. by the labour union. Ld. counsel for the CS.No. 765/10 Page 11 of 27 plaintiff has contended that the defendant union has extended threats of violence in their various letters and have prevented ingress and egress of the members of the club and willing workers by assembling at the gate of the club and demonstrating and raising slogans.
22. I have perused the letters of the defendant union. Relevant portion of the letter dated 03.08.2010 which is Ex. PW1/5 reads as under:
"On various meetings there is lot of resentment and anger amongst all the employees. They will observe "Protest Black Day" from tomorrow onwards by wearing black badges while doing their duty. We once agin like to reiterate that the management give the VDA to all its employees failing which the struggle will be intensified in future."
23. Last para of the letter dated 02.09.2010 which is Ex. PW1/8 reads as under:
" Therefore, at the General Body Meeting held today, at 3.30 PM, have decided to intensify the agitation in near future. To make situation conductive for amicable solution, it is decided to give 48 hrs. time to the management. In case the management fails to CS.No. 765/10 Page 12 of 27 address the demand i.e. total neutralisation of VDA, we will be forced to resort to direct action from Saturday onwards, for which the management will be solely responsible."
24. Perusal of the two letters shows that the defendant union has extended threat of completely jeopardizing the work of the club. The DWs in their crossexamination have admitted that union and members used to do demonstrations at the gate of the club before filing of the suit. It is also admitted by DW1 in his cross examination that on 21 & 22 August 2010, the kitchen and the service staff suspended work for one hour and no written intimation was given regarding suspension of work to the management. It is also admitted by DW1 that even after receiving the stay order the members of the union kept sitting on the gate of the club and only after the police intervened and asked them to abide by the order, they left and started demonstrating at a distance of 100 mtrs.
25. In the judgment of Superior Crafts (supra), it has been observed by Hon'ble High Court that Civil court has jurisdiction to entertain suits for permanent injunction. Relevant para 9 is reproduced below:
CS.No. 765/10 Page 13 of 27
"9. In Vidya Sagar Institute's case this Court after considering the various rulings of the High Court as well as of the Supreme Court summarised principle applicable in such suits and civil actions in the following terms: ``14. From these following principles can be culled out:
1. Civil Court has the jurisdiction to entertain suit of this nature.
2. Immunity given to the Unions under Section 18 of the Trade Unions Act, 1926, does not extend to conduct those actions which may amount to offence.
3. Peaceful demonstration is a fundamental right of the unions/employees.
4. It is the legitimate right of the workers to make legitimate demands and when not met, even go on peaceful but legal strike, a right so recognized under labor laws. Trade Union has a right to pursue its Trade Union activities by peaceful methods.
However, in exercise of such a right Unions/employees cannot disrupt the functioning of CS.No. 765/10 Page 14 of 27 the employer or obstruct willing workers from performing their duties. Further they cannot indulge in the acts of violence, physical assault, intimidation, threats, etc.
5. There is no right to the unions/employees to hold demonstrations at the residence of the employer. This is specifically prohibited by the provisions of the Industrial Disputes Act and amounts to unfair labour practice on the part of the unions (see Schedule V Entry 6). Thus holding of any kind of demonstration even physical demonstration is per se prohibited at the residence of the employer.
6. Thus while it may be the right of the union to hold peaceful demonstration, such demonstrations cannot be allowed to become violent or intimidating in nature. The safety of those visitors who are visiting the employers premises as well as those willing workers, including their smooth ingress and egress is also to be ensured. This balance is to strike between the two competing and conflicting interests. CS.No. 765/10 Page 15 of 27 The Courts have devised the methods to ensure it by fixing the distance from the employers premises within which such demonstration, etc. would not be permissible meaning thereby Unions can resort to these demonstrations only beyond a particular distance. In this way they are able to hold peaceful demonstration and at the same time it is ensured that such peaceful demonstration does not relegate the aforesaid rights of the employer. This is a message which runs through all the aforesaid judgments.'`
26. In view of above discussion, this court holds that jurisdiction of civil court is not barred under either Trade Union Act or Industrial Disputes Act to entertain suit for permanent injunction as it is common/general law remedy not provided under aforesaid Acts. Industrial Disputes Act does not provide remedies in the nature of temporary or permanent injunction. There is no ouster of jurisdiction of civil court to grant relief of permanent or temporary injunction. Hence issue no. 1 and 2 are decided against the defendant and in favour of the plaintiff. CS.No. 765/10 Page 16 of 27 Issue no. 3
27. The onus to prove this issue was on the plaintiff. Plaintiff has examined Sh. S.K. Sharma, Secretary of the plaintiff club, as PW1. PW1 in his affidavit has substantially reiterated the contents of the plaint. PW1 in his affidavit has stated that the defendant union has obstructed the ingress and egress of the willing employees and the members of the club. Relevant para of the affidavit reads as under:
"19. I state that vide letter dated 7th August, 2010 the defendant Union threatened to go on strike and protest if their alleged demand is not acceded to by the plaintiff club. The management committee of the plaintiff held meeting with all the employees where all the employees were made to understand that they have been paid their salary as per law and there is no justification in the demand raised by the defendant Union and the defendant Union office bearers are misleading them. Copy of letter dated 7th August, 2010 is Ex.PW1/7.
"22. I state that on 21st and 22nd August 2010 CS.No. 765/10 Page 17 of 27 without any notice or intimation, few office bearers of the defendant Union forced the entire kitchen and service staff to suspend the operations of the club and for more than 2 hours from 7.00 to 9.00 pm the entire club functioning was severally disturbed. The aforesaid action of the defendant Union was not only illegal but is a gross case of misconduct.
"23. I state that during the aforesaid period the members of the defendant Union not only raised slogans but also disturbed the members of the club and obstructed them from entering the club. The slogans were also raised in front gate of the club. The employees who were willing to work were obstructed forcibly from entering the club and even the members of the club were obstructed from entering the club.
It is pertinent to mention here that the club is having on its panel different caterers who as and when required are called for catering services etc. CS.No. 765/10 Page 18 of 27 "25. I state that the defendant Union has now threatening that they will shut down all the activities of the club and are even threatening to damage the property of the club. The defendant Union is also threatening not to allow the caterers to perform their obligations in the club. "29. I state that the defendant Union are threatened to prevent the ingress or egress of the willing workers who wanted to work and members of the club from entering the club. They also threatened to disturb the regular day to day activities of the club as stated above.
"30. The defendant Union further threatened to hold demonstrations at the residences of the office bearers and the members of the Executive Committee of the club though it is specifically prohibited under the provisions of the industrial Dispute Act and amounts to unfair labour practice."
28. Ld. counsel for plaintiff has argued that the defendant CS.No. 765/10 Page 19 of 27 union has threatened to indulge in such activities which would disturb the activities of the club and they have also stopped willing workers from doing their duty. The defendant union by raising slogans and holding demonstrations at the gate of the club have obstructed the ingress and egress of willing employees and members of the club. On the other hand, Ld. counsel for the defendant union has argued that there is no cause of action in favour of plaintiff to file the present suit as the demonstration held by the employees and the union were always peaceful and ingress and egress of either members or employees was never obstructed.
29. Ld. counsel for the plaintiff has argued that the defendant has threatened direct action in their letter dated 02.09.2004 from Saturday onwards. They have also threatened to intensify their agitation. He has argued that they demonstrated and raised slogans at the main gate of the club and there is serious apprehension that they will again resort to such acts in near future.
30. Perusal of the letter dated 02.09.2010 written by defendant union to the plaintiff club management which is Ex. PW1/8 shows that in the said letter the union has informed the plaintiff about their decision to intensify the agitation in near CS.No. 765/10 Page 20 of 27 future, in case their demands is not accepted by the management and they will resort to direct action.
31. PW1 Sh. S.K. Sharma in his crossexamination has denied the suggestion that there was no threat/disturbance from the union in the functioning of the club. He has also deposed that in spite of interim order passed by the court, the defendant union has raised slogans, blocked the main gate and even assaulted the employees who were willing to work. The union remained on strike for one week and resumed their duty after tendering written apology.
32. On the other hand, DW1 Sh. Jagdish Prasad Sharma, President of the plaintiff club has denied that the union interfered in the functioning of the club. DWs have also denied that due to demonstrations and blocking of gate the ingress and egress of the members was obstructed.
33. However it is relevant to refer the statements of DWs during the crossexamination where they have admitted that they used to hold meeting and slogans at the gate of the club before filing of the suit. DW2 Sh. Ajay Kumar, General Secretary of the defendant union, in his cross examination has deposed: CS.No. 765/10 Page 21 of 27
" It is correct that before filing of the suit, at about 3.00 PM when the shift of the employees is changed, the employees to hold meeting at the gate of the club and raised slogans. After stay order slogans were not raised and demonstrations were not done at the gate of the club.....It is correct that at the time the stay order of the court was shown to the office bearers of the Union, 4050 employees were sitting at the gate of the club...
It is correct that on that date the club has arranged Geeto bhari sham for the members in which around 700 members were expected....
It is correct that despite receiving court orders we were sitting on the gate of the club and we left the gate only after intervention of the police."
34. DW1 Sh. Jagdish Prasad Sharma, President of the defendant union, has also admitted in his crossexamination that the union used to do demonstration at the gate of the club. He has deposed that "It is correct that me and my union used to do demonstrations on the gate of the club before filing of the present CS.No. 765/10 Page 22 of 27 suit....
.... It is wrong that on 21 and 22. 08.2010 we susepnded the working of the club for two hours be even forcing the kitchen and service staff to suspend the operations. Vol. It was only for one hour on each day.
.... It is correct that on 04.09.2010 the club organized Geeto Bhari Shaam in which about 500700 members were expected. It is correct that I sent a notice on 02.09.2010 of 48 hrs. of direct action... It is correct that there is no member of the union who is paid below minimum wages fixed by the Government. ...... It is correct that even after receiving the stay order we kept sitting on the gate of the club and only after the police intervened and asked us to abide by the stay order we left and started demonstrating at a distance of 100 mtrs.
....The union will do demonstrations as per the circumstances if the demands of the union are not are not accepted by the management."
35. DWs in their statements during crossexamination has denied that due to demonstrations at the gate of the club, the ingress and egress of members and employees was obstructed. CS.No. 765/10 Page 23 of 27 However their contention is not acceptable as it is not probable that if 50 employees are demonstrating at the gate of the club, it would not obstruct ingress and egress of the members or employees. It is also admitted by DW1 that for one hour on 21 and 22.08.2010 entire kitchen and service staff was forced to suspend their operations and no prior written intimation was given by the union regarding strike proposed to be held on 21 & 22.08.2010. It is alleged by DWs that after the stay order of the court on 04.09.2010, the management asked the employees to leave the club and to demonstrate at a distance of 100 mtrs. However surprisingly, the union has not complained against the management before any authority for their alleged action of asking the employees to leave the club after the stay order of the court. Therefore their contention that the management asked the employees to leave the club can not be accepted.
36. DW1 has denied that Sh. Mange Ram and Bharat Singh Khati chased the waiters who were willing to work with dandas on 04.09.2010. However it is admitted by DW1 that they were suspended by the management after the incident and only after written apology of all the office bearers and participating members CS.No. 765/10 Page 24 of 27 of the union, the suspension of three persons were recalled. It is, however, alleged that written apology was got written by the management by force. But it is admitted that no complaint has been filed before any authority against the act of management forcing them to sign the written apology. Any other reason for suspension of Sh. Mange Ram and Bharat Singh Khati has not been given by the DWs. It creates probability in favour of the plaintiff that few union members were forcibly stopping the willing workers from doing their duty.
37. Further in the letter dated 02.09.2010 the union has threatened the management of direct action if their demands are not accepted within 48 hrs. This threat would show that the apprehension of the plaintiff is not without any substance. On the balance of probability, it can be said that the plaintiff has a real apprehension that the members of the defendant union may cause harm to the club property as well as to the willing staff and the club members. If the union indulged in demonstrations which would be more intense, it would adversely affect the functioning of the club and would create obstruction in the ingress and egress of members and employees in the future also. Therefore in view of CS.No. 765/10 Page 25 of 27 above discussion this court holds that the way defendant union has been holding demonstrations and raising slogans, it has been obstructing the ingress and egress of members and employees and it also force the willing staff to stop their work, which is not permissible. Hence the plaintiff club is entitled to a decree of permanent injunction. Accordingly, issue no. 3 is decided in favour of the plaintiff club and against the defendant union.
38. Relief In view of my findings on issue no. 3, the suit of the plaintiff is decreed. Plaintiff is entitled to a decree of permanent injunction. However the distance of 100 mtrs. can not be justified in this case. Delhi is a city where vacant place is very scarce and a distance of 100 mtrs. in city like Delhi would make the demonstrations completely ineffective. Any demonstration or strike by union which does not bring pressure upon the management to accept their demands would be futile. A lawful demonstration would lose its significance if the union is asked to demonstrate at a far away place from the premises of the club.
39. Therefore, plaintiff is entitled to a decree of permanent injunction thereby restraining and prohibiting the defendant, CS.No. 765/10 Page 26 of 27 agents, members, associations etc. from holding any demonstration, dharna, gherao, slogan, shouting and hooliganism at least 20 meters from the premises/boundary wall of Holiday Club, DBlock, Panchseel Enclave, New Delhi and also from the residences of the members of the Executive Committee of the club and the defendant union is also restrained from blocking ingress and egress of the plaintiff, its employees, caterers, office bearers and visitors etc. in the club. SHO concerned is directed to ensure compliance of the order.
40. Accordingly suit of the plaintiff is decreed. In view of circumstances of the case, parties to bear their own cost. Decree sheet be prepared accordingly. File be consigned to the record room.
Pronounced in the open court on 23.12.2011 (NEHA) Civil Judge03(South) New Delhi.
CS.No. 765/10 Page 27 of 27