Madras High Court
The General Secretary vs Socialist Workers Forum on 1 February, 2010
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01-02-2010 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN C.R.P.No.277 of 2010 and M.P.No.1 of 2009 The General Secretary, H.V.F.Employees Union, Avadi, Chennai-600 054. .. Petitioner. Versus 1.Socialist Workers Forum, Rep. by its Secretary, J.Muralitharan. 2.K.Durairaj .. Respondents. Prayer: Petition filed under Article 227 of the Constitution of India, seeking to set aside the order, dated 22.1.2010, passed in I.A.No.33 of 2010 in O.S.No.8 of 2010, on the file of the learned Subordinate Judge, at Poonamallee. For Petitioner : Mr.N.G.R.Prasad for M/s.Row and Reddy For Respondents : Mr.V.Prakash, Senior Advocate, for Mr.S.N.Ravichandran O R D E R
This Civil Revision Petition has been filed praying that this Court may be pleased to set aside the order, dated 22.1.2010, passed in I.A.No.33 of 2010, in O.S.No.8 of 2010, on the file of the Subordinate Judge, Poonamallee.
2. The following grounds have been raised by the petitioner while challenging the order, dated 22.1.2010, made in I.A.No.33 of 2010, in O.S.No.8 of 2010, on the file of the Subordinate Judge, Poonamallee:
" (1) The order of the learned Sub Judge is totally without jurisdiction and patently erroneous.
(2) The learned Sub Judge has practically decreed the suit in the interim application.
(3) The learned Sub Judge failed to see where the amended Bye law 4 which was passed at the General Body meeting, held on 29.4.2009, had not bee challenged and that bye law had also been approved by the Deputy Commissioner of Labour, Chennai, on 23.12.2009. The learned Sub Judge had no jurisdiction to include the names of T.Panchatcharam and R.Andhidoss who had not been named at the General Body meeting held, on 29.4.2009, and to conduct the election, as per amended Bye law 4.
(4) The learned Sub Judge further had no jurisdiction to include the names of any other retired employees and other union persons and to conduct the election.
(5) The learned Sub Judge in the interim application had to only decide when T.Panchatcharam and R.Andhidoss had not been admittedly named at the General Body meeting held, on 29.4.2009, whether they can be allowed to contest for the post of President or honorary President contrary to amended Bye law 4. The learned Sub Judge has nowhere given a finding on this issue.
(6) The learned Sub Judge failed to see when admittedly T.Panchatcharam and R.Andhidoss had not been named at the General Body meeting held on 29.4.2009, for the post of President or honorary president he had no jurisdiction to direct their names to be included and also the names of person belonging to other union to be included and to conduct the election.
(7) The learned Sub Judge failed to see that the plaintiff has chosen to challenge only Bye law 4 and leaving other three bye laws unchallenged which were passed at the same General Body meeting held, on 29.4.2009.
(8) The learned Sub Judges direction is contrary to the amended bye law 4 which was validly passed in the General Body meeting held, on 29.4.2009.
(9) The learned Sub Judge by directing the names to be included and also fixing the date for election as acted contrary to the General Body meeting resolution validly passed, on 29.4.2009."
3. The learned counsel Mr.N.G.R.Prasad, appearing on behalf of the petitioner, had submitted that a notice, dated 13.4.2009, had been issued, in accordance with the bye-laws of the Heavy Vehicles Factory Employees Union, Avadi, Chennai, stating that a general body meeting of the Union, would be held, on 29.4.2009. The agenda for the general body meeting had included the proposal for the amendment of Bye-law Nos.4, 11.A and 11.B of the bye-laws of the Union. Bye-law No.4 of the said bye-laws read as follows:
Persons not actually engaged or employed in the industry with which the Union is connected may be admitted as honorary members of the Union for the purpose of serving as the Office Bearers of the Union. It was proposed to be amended as follows:
Persons, not actually engaged or employed in Heavy Vehicles Factory, Avadi, Chennai-54, may be admitted as honorary members of the Heavy Vehicles Factory Employees Union bynames for the purpose of serving as the honorary President or President or working President of this Union by a resolution which should be adopted by the General Body Meeting of this union, held just before the Union General Election.
4. The learned counsel had submitted that in the general body meeting of the union held, on 29.4.2009, Bye-law No.4 of the bye-laws of the Union had been amended and certain persons had been admitted as honorary members of the Union. The amendment of the bye-laws had also been registered by the Deputy Commissioner of Labour, Chennai, as per the provisions of the Trade Unions Act, 1926. Thereafter, an election notice had also been issued stating that the election would be held, on 22.1.2010, in accordance with the amended bye-laws of the Union. While so, a civil suit had been filed by the Socialist Workers Forum, represented by its Secretary, J.Muralitharan, in O.S.No.8 of 2010, on the file of the Subordinate Judge at Poonamallee, praying for the grant of a permanent injunction restraining the defendants, their men, agents, servants and others from conducting the H.V.F.Employees Union election, for the years, 2009-2011, according to the amended Bye-law No.4 of the Union.
5. The plaintiff in the suit had also filed an interlocutory application in the said suit, in I.A.No.33 of 2010, praying for an ad-interim injunction to restrain the defendants, their men, agents, servants and others from conducting the H.V.F.Employees Union elections, for the years 2009-2011, according to the amended Bye-law No.4 of the Union, till the disposal of the suit.
6. In the counter affidavits filed by the respondents in the interlocutory application, it has been clearly stated that, in the general body meeting, held on 29.4.2009, the amendments in the bye-laws of the H.V.F.Employees Union had been duly passed. When the validity of the general body meeting, held on 29.4.2009, had not been directly challenged in the suit, in O.S.No.8 of 2010 and when the validity of the amendments made in Bye-law Nos.11 and 11-A had not been questioned, it would not be open to the petitioner to challenge the amendment made in Bye-law No.4 of the Union.
7. It had also been stated that, when an amendment to Bye-law No.4 had been passed at the general body meeting, held on 29.4.2009, and when names were called for the post of President or Honorary President, from outsiders, the petitioner Forum had not suggested any name. While a number of names had been proposed and when they had been admitted, as honorary members of the Union, the petitioner Forum had not suggested the names of T.Panchaksharam and R.Andhidoss. Without doing so, the petitioner Forum was raising an issue stating that it has been prevented from taking part in the election, to elect the officer bearers of the Union.
8. The learned counsel appearing on behalf of the petitioner in the Civil Revision Petition had also submitted that the suit, in O.S.No.8 of 2010, on the file of the Subordinate Court at Poonamallee, is not maintainable in the eye of law. As such, the order passed by the Subordinate Judge, Poonamallee, in I.A.No.33 of 2010, in O.S.No.8 of 2010, on 22.1.2010, is erroneous, illegal and void. The Subordinate Judge does not have the jurisdiction to issue a direction for the holding of the election, on 1.2.2010, by including the persons, whose names have been mentioned in the interlocutory application and certain others, who are not members of the H.V.F.Employees Union. Once, the prayer for an ad-interim injunction, in the interlocutory application, in I.A.No.33 of 2010, had been refused by the Subordinate Judge, it is not open to him to issue a direction to conduct the election, including outsiders, who are not members of the H.V.F.Employees Union.
9. The learned counsel had further submitted that when J.Muralitharan, the Secretary of the Socialist Workers Forum, the first respondent in the Civil Revision Petition, in C.R.P.(PD).No.277 of 2010, had participated in the general body meeting of the Union, held on 29.4.2009, he is not competent to challenge the H.V.F.Employees Union election to be held, to elect the officer bearers of the Union, for the years 2009-2011. The direction issued by the Subordinate Judge, Poonamallee, in I.A.No.33 of 2010, cannot be held to be valid in the eye of law, especially, when there is a serious doubt regarding the maintainability of the suit, in O.S.No.8 of 2010. No proper reasons have been given by the Subordinate Judge for issuing the direction, when he had refused to grant an order of injunction, as prayed for by the petitioner, in I.A.No.33 of 2010. The final direction issued by the Subordinate Judge is diametrically contrary to his findings recorded in the earlier part of his order. By issuing the direction to hold the election, on 1.2.2010, by including several persons, who are not members of the H.V.F.Employees Union, the Subordinate Judge had decided the main issues that had arisen for consideration in the suit, in O.S.No.8 of 2010. Therefore, the order passed by the Subordinate Judge, Poonamallee, on 22.1.2010, in I.A.No.33 of 2010, in O.S.No.8 of 2010, is liable to be set aside.
10. Mr.N.G.R.Prasad, the learned counsel for the petitioner in the Civil Revision Petition, had submitted that this Court could interfere with the order passed by the Subordinate Judge, Poonamallee, on 22.1.2010, in I.A.No.33 of 2010, in O.S.No.8 of 2010, by invoking its power of superintendence over the Subordinate Courts. He had submitted that the order passed by the Subordinate Judge, on 22.1.2010, in I.A.No.33 of 2010, is perverse and it is an error apparent on the face of the record. As the Subordinate Judge had passed the order, without having jurisdiction to do so, it has to be set aside by this Court, by invoking its supervisory jurisdiction, under Article 227 of the Constitution of India.
11. Mr.N.G.R.Prasad, the learned counsel for the petitioner in the Civil Revision Petition, had relied the decision of the Supreme Court, in Yeshwant Sakhalkar V. Hirabat Kamat Mhamai (2004) 6 SCC 71), in support of his contention, with regard to the jurisdiction of this Court, under Article 227 of the Constitution of India, wherein it has been held as follows:
11. The question as to whether the application of Article 227 of the Constitution of India could be maintainable or not has been answered by this Court in Surya Dev Rai. V. Ram Chander Rai (2003) 6 SCC 675, wherein it was held:
38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:
(1) Amendment by Act 46 of 1999, with effect from 1.7.2002, in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction --- by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to taken one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari, and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.
12. Per contra, Mr.V.Prakash, the learned Senior Counsel, appearing on behalf of the first respondent, had raised a preliminary objection, with regard to the maintainability of the Civil Revision Petition. He had submitted that the Civil Revision Petition, filed by the petitioner, cannot be maintained before this Court, under Article 227 of the Constitution of India. The supervisory jurisdiction of this Court, under Article 227 of the Constitution of India, can be invoked only when there is want of jurisdiction, serious errors of law, perverse findings, or gross violation of natural justice. Unless it is shown that grave injustice had been caused to the petitioner the superintending power of this Court, under Article 227 of the Constitution of India, cannot be invoked, to set aside the order, dated 22.1.2010, passed by the Subordinate Judge, Poonamallee, in I.A.No.33 of 2010, in O.S.No.8 of 2010. Since the necessary ingredients have not been shown to exist in the present case, the Civil Revision Petition is liable to be dismissed, inlimine.
13. He had also submitted that the present Civil Revision Petition is not maintainable, especially, after the insertion of Clause 2, in Section 115 of the Code of Civil Procedure, 1908, which states that the High Court shall not vary or reverse any decree or order against which an appeal lies, either to the High Court or to any Court subordinate thereto. Since, there is no compelling urgency or outrage committed by the trial Court, which could be held to be shocking the conscience of this Court, the supervisory jurisdiction of this Court, under Article 227 of the Constitution of India, cannot be invoked. Further, the order of the Subordinate Judge, Poonamallee, dated 22.1.2010, cannot be set aside only on the ground that the said order could render the suit, in O.S.No.8 of 2010, as infructuous.
14. The learned counsel for the first respondent had also submitted that when an appellate remedy is available to the petitioner, under Order XLIII Rule 1 of the Code of Civil Procedure, 1908, it is not open to the petitioner to invoke the superintending power of this Court, to set aside the impugned order. The reason that there could be some delay in filing an appeal against the impugned order of the Subordinate Judge, Poonamallee, dated 22.1.2010, cannot be raised, as a valid ground for filing a Civil Revision Petition before this Court, under Article 227 of the Constitution of India.
15. The learned counsel had also stated that the petitioner is not eligible to seek an order from this Court, on the ground of equity, since, the petitioner had filed the Civil Revision Petition, initially, without producing before this Court, the full-fledged order of the Subordinate Court, Poonamallee, dated 22.1.2010, made in I.A.No.33 of 2010. The Civil Revision Petition had been filed only with a copy of the docket order of the said Court. Since, proper reasons have been given by the Subordinate Court, Poonamallee, for issuing the direction to conduct the election of the H.V.F.Employees Union, for the years 2009-2011, on 1.2.2010, the petitioner had not produced the said order, before this Court, while filing the Civil Revision Petition. As such, the petitioner cannot expect this Court to consider the matter on the basis of equity.
16. The learned counsel had relied on N.Yonus Sait V. T.Joseph (2007) 4 MLJ 451), wherein, it has been held that, when there is another alternative remedy open to the party, which is effective and adequate to meet the needs of the case, the High Court will not use its extraordinary powers, under Article 227 of the Constitution of India.
17. In Alexander V. M.Balu (2008) 2 MLJ 139), it has been held that, when the alternative remedy, by way of an appeal is available, against the order making the interim injunction absolute, a revision, under Article 227 of the Constitution of India, is not maintainable.
18. In Punjab National Bank V. O.C.Krishnan (2001) 6 SCC 569), it has been held as follows:
The Recovery of Debts due to Banks and Financial Institutions Act, 1993, has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-tract procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act.
19. In Surya Dev Rai V.Ram Chander Rai (2003) 6 SCC 675), it had been held as follows:
Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction.
Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. The High Court may have regard to legislative policy formulated on experience and expressed by enactments where the legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from exercise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision.
20. In Rajasthan SRTC V. Bal Mukund Bairwa (2009) 4 SCC 299, it has been held as follows:
Section 9 of the Code is an enforcement of fundamental principle of law laid down in the maxim ubi jus ibi remedium. A litigant, thus having a grievance of a civil nature has a right to institute a civil suit in a competent civil Court unless its cognizance is either expressly or impliedly barred by any statute. Civil courts can try all suits, unless barred by a statute, either expressly or by necessary implication. Civil Court being a Court of plenary jurisdiction has the power to determine its jurisdiction upon considering averments made in the plaint but that does not mean that plaintiff can circumvent provisions of law in order to invest jurisdiction on civil Court which it may not otherwise possess. For the said purpose, the Court in given cases would be entitled to decide the question of its own jurisdiction upon arriving at a finding in regard to the existence of jurisdictional fact. There is a presumption that a Civil Court has jurisdiction. Ouster of civil courts jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or tribunal acts without jurisdiction.
21. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the first respondent, and on a perusal of the records available, and in view of the decisions cited supra, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the reliefs, as prayed for by the petitioner, in the present Civil Revision Petition.
22. It is a well settled position of law that a Civil Revision Petition can be filed before this Court, under Article 227 of the Constitution of India, only in certain extraordinary or special circumstances, arising due to want of jurisdiction, grave errors of law, perverse findings, or when there is gross violation of the principles of natural justice.
23. From the decisions cited supra, it is clear that such extraordinary or special circumstances do not exist in the present case, for this Court to invoke its supervisory jurisdiction, under Article 227 of the Constitution of India, in spite of an alternative remedy being available to the petitioner. Merely, for the reason that the subordinate Judge, Ponnamallee, had passed an order, on 22.1.2010, in I.A.No.33 of 2010, in O.S.No.8 of 2010, directing the second respondent to conduct the election, to elect the office bearers of the Heavy Vehicles Factory Employees Union, Avadi, Chennai, for the years 2009-2011, including certain persons, who are said to be outsiders, it cannot be held that the petitioner could invoke the supervisory jurisdiction of this Court, under Article 227 of the Constitution of India. Even if the order passed by the Subordinate Judge, Ponnamallee, on 22.1.2010, in I.A.No.33 of 2010, in O.S.No.8 of 2010, is found to be erroneous, on various grounds, as alleged by the petitioner, the said order can be challenged, as per the relevant provisions of the Code of Civil Procedure, 1908. It would not be open to the petitioner to contend that the alternative remedy available to the petitioner, under the relevant provisions of the code of Civil Procedure, 1908, is ineffective and therefore, the present civil revision petition is maintainable before this Court, under Article 227 of the Constitution of India.
24. Once it is found that an alternative remedy is available to the petitioner, unless certain extraordinary or special circumstances are existing, as held in the various decisions of this Court, as well as of the Supreme Court, it would not be open to the aggrieved party to approach this Court, by filing a civil revision petition, under Article 227 of the Constitution of India. Further, there is no impediment for the petitioner to raise all the available grounds before the appropriate forum, as per the provisions of the code of civil procedure, 1908. Even though the availability of an alternative remedy may not act an absolute bar, for aggrieved party to approach this Court, it is clear, from the various decisions cited above, that the supervisory jurisdiction of this Court would be available to the party concerned only when it could be shown that the order under challenge has been passed totally without jurisdiction, in gross violation of the principles of natural justice or when there is an apparent error on the face of the order, inviting the interference of this Court. However, in the present case such circumstances do not exist.
25. Supervisory jurisdiction is to be exercised sparingly and only in appropriate cases, where the judicial conscience of this Court dictates that it should act lest a gross failure of justice or grave injustice should occasion. This Court cannot be like a runaway train or like a bull in a China shop. The power vested in this Court, under Article 227 of the Constitution of India, should be exercised with due care, caution and circumspection. As such, the contentions raised on behalf of the petitioner cannot be countenanced. In such view of the matter, this Court is constrained to hold that the present Civil Revision Petition is not maintainable. Hence, it stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
csh To The Subordinate Judge, at Poonamallee