Delhi High Court
Indian Pilots Guild vs Air India Ltd. on 17 May, 2012
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, Rajiv Shakdher
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 16.05.2012
% Judgment delivered on: 17.05.2012
+ FAO(OS) 206/2012
INDIAN PILOTS' GUILD ..... Appellant
versus
AIR INDIA LTD ..... Respondent
Advocates who appeared in this case:
For the Appellant: Mr. Dushyant Dave, Sr. Adv. with Ms. Faranaaz Karbhari, Ms. Nandini
G., Mr. Darpan Wadhwa, Ms. Aditi Bhatt, Ms. Abhiruchi M. & Mr.
Kartik Bhatnagar, Advocartes.
For the Respondents: Mr. Lalit Bhasin, Ms. Neena Bhasin, Mr. Sanjay Gupta, Mr. Mudit
Sharma, Ms. Shriya Dabas, Ms. Shweta Shukla & Ms. Bhavna D.,
Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE RAJIV SHAKDHER
SANJAY KISHAN KAUL, J
FAO(OS) No. 206/2012 & CM Nos. 8974/2012 (stay) & 8976/2012 (for suit
record)
1. This Appeal brings to fore the competing rights of parties in a lis, which
has its genesis in the merger of two national air carriers, i.e., Air India and
Indian Air Lines. In this, internecine and passionate battle of rights there are
several dramatis personae. The appellant, which is a trade union representing
evidently 600 pilots of erstwhile Air India is one such party, the respondent
FAO(OS) 206/2012 Page 1 of 23
which is the management is the other party. But there is an important party to
this lis which, often goes unrepresented, which is, the passenger. The
respondent, that is, the management, in this litigation, seeks to represent this
powerless, but important player, i.e., the passenger. One may or may not be able
to decipher the motive of the respondent for doing so, but surely, as is well
known, of which we can take judicial notice, that the respondent would find it
difficult to survive if the passenger were to give up on it. This is apart, from the
fact that, a national carrier is required to fulfill certain social obligations by
connecting remote parts of the country, which may not be, economically gainful
for private players presently operating in the aviation industry.
1.1 There is also another element of large public funds being infused to keep
the respondent organization afloat. A private organization would have wound
up given the financial constraints of the respondent but it is the infusion of
public funds by the Government of India (GOI) which has kept the respondent
afloat. In such difficult times all stake holders have to make sacrifices and the
endeavour should be to rescue the organization from the financial difficulty, it
finds itself in. On the other hand the members of the appellant appear to have
taken the movement as an opportunity to raise issues about their alleged rights
pending consideration before the competent court to bring the functioning of the
respondent to a stand-still. The action of the appellant thus, is undoubtedly
contrary to public weal.
2. With this preface articulated, what presently ails the appellant is this: The
appellant is aggrieved by the ex-parte order dated 09.05.2012, passed by a
learned Single Judge of this Court, whereby the appellant (original defendant
no.1) has been restrained from continuing with: "illegal strike and/or reporting
sick and/or staging demonstrations, dharnas, gheraos etc. inside and outside the
FAO(OS) 206/2012 Page 2 of 23
premises of the plaintiff - company located at the Airports, Terminals, Head
Offices and all other offices of the plaintiff - company including the residence of
the officers of the plaintiff - company. The defendant no. 1, its members and all
others acting on its behalf are further restrained from obstructing ingress and
egress from the Head Office, the Regional Offices or any other offices/ branches
and counters of the plaintiff-company, wherever these are...."
3. The aforementioned order has been passed broadly in the context of the
following facts. These facts are gleaned by us from the record, which is, the
plaint and the documents filed alongwith, as also, the averments made in the
appeal.
3.1 It appears that in 2005, the erstwhile Air India had placed orders for 50
Boeing aircrafts of which, 23 were Boeing 777 and 27 were Boeing 787.
Similarly, it appears that the erstwhile Indian Airlines placed an order for 43
Airbus aircrafts. It is the stand of the appellant before us, that the 43 Airbus
aircraft have been delivered and are being operated only by pilots who were
earlier employed by the erstwhile Indian Airlines. On parity, the appellant
claims exclusive rights to train on and fly Boeing aircrafts, to the exclusion of
the pilots employed by the erstwhile Indian Airlines.
3.2 It is the stand of the appellant that in 2007, just prior to the merger of Air
India with Indian Airlines a wage agreement was entered into between the pilots
of the Air India and the then management of Air India which envisaged the
induction of twelve (12) Boeing 787 aircrafts and on its completion, the pilots
who would command the said aircrafts would get enlisted as per the seniority
list related to Boeing 747-400 Boeing 777/A310.
3.3 Admittedly, the merger was sanctioned, under a scheme of amalgamation,
by the Ministry of Corporate Affairs vide order dated 28.02.2007. Upon merger
FAO(OS) 206/2012 Page 3 of 23
a new company by the name of National Aviation Company of India Ltd.
(hereinafter referred to as the NACIL), came into existence while, the erstwhile
transferor companies, i.e., Air India and Indian Airlines dissolved without being
wound up. The business of Air India and Indian Airlines was consolidated into
NACIL. However, the name of NACIL was changed to Air India Ltd. (which is
the respondent in the present proceedings) w.e.f. 24.11.2010.
3.4 It is averred by the appellant that in 2008 when, delivery of Boeing 777
was to be made the respondent attempted to send pilots from erstwhile Indian
Airlines for training, on the said aircrafts. This led the appellant to file a writ
petition bearing no. 1615/2008 in the High Court of Bombay. According to the
appellant, in the writ petition, restraint orders were sought against the
respondent against unilateral and arbitrary alteration of service conditions as
contained in the wage agreement. Apparently, a prayer was also made against
pilots of erstwhile Indian Airlines being trained on Boeing 777 aircrafts. It is
also averred by the appellant that on 26.02.2009, a deed of recognition was
signed between the appellant and the respondent whereby broadly, it was agreed
that if the aforementioned writ petition was withdrawn, the issue raised in the
writ petition could be discussed and mutually settled, and that, training on
Boeing 777 aircraft would involve only the pilots employed by erstwhile Air
India.
3.5 Evidently, the said writ petition was withdrawn on 25.02.2010, as claimed
by the appellant, after taking the deed of recognition on record. The matter
apparently did not end here, as according to the appellant it received information
about the respondent engaging the representatives of the Indian Commercial
Pilots Association (hereinafter referred to as ICPA) (which as we understand
represents the pilots of erstwhile Indian Airlines) with a view to convey to them,
FAO(OS) 206/2012 Page 4 of 23
that the crew required for flying Boeing 787 aircraft would be drawn in equal
measure from both airlines. This fact was evidently communicated by the
appellant to the respondent on 16.11.2010.
3.6 There is an averment also to the effect that a meeting was held on
23.03.2011, between the representatives of the appellant and the respondent
wherein assurances were given that the pilots from the erstwhile Indian Airlines
would be engaged on Boeing 777 and 787 only after exhausting the resources
available from amongst those who were employed with the then Air India. This
aspect evidently is, recorded according to the appellants, in the minutes of the
meeting 13.04.2011.
3.7 Undeniably, a notification was issued on 11.05.2011, constituting a
committee headed by Justice Dharmadhikari (as he then was) to examine the
aforesaid issues including the aspects of integration of cadres and determination
of inter se seniority.
3.8 The respondent it appears was concerned with effective cross-utilization
of valuable human and material resources available in the two airlines and
hence, apparently took a policy decision that in so far as Boeing 787 aircrafts
were concerned, pilots would be sent for training from the two airlines in the
ratio of 1:1. In this regard a meeting was held apparently amongst the
representatives of the appellant, the ICPA and the respondent on 08.10.2011. It
is the stand of the respondent, in paragraph 7 of the plaint that, an agreement
was arrived between the parties referred to above, to the effect that at least eight
(8) sets of pilots would be sourced from the two airlines for being trained on
Boeing 787 aircraft. We observe that the appellant has averred, similarly, in
paragraph 7(xiv) of the appeal, though with a caveat. The averment of the
appellant is while they had agreed to consider a simultaneous movement of
FAO(OS) 206/2012 Page 5 of 23
pilots from the two airlines, it was only in respect of the first Boeing 787 aircraft
and that too subject to certain conditions. The offer, according to the appellant,
was conditional. The respondent on the other hand has pleaded that the
appellant after agreeing had resiled from the agreement arrived at the meeting
dated 08.10.2011, by issuing a letter dated 18.10.2011.
3.9 The appellant being of the view that drawing of pilots from the two
streams would be contrary to the earlier agreement and assurances and would
possibly render the proceedings before the Committee headed by Justice
Dharmadhikari, a mere formality, instituted a writ petition in the Bombay High
Court, on 29.10.2011. The writ petition was numbered as: WP(L) No.
2399/2011; wherein a challenge was laid to the action of the respondent of
reserving one-half of its training slots, on new Boeing 787 aircrafts, for pilots
earlier engaged with Indian Airlines. In the aforementioned writ petition the
Bombay High Court granted an interim order dated 13.03.2012. The upshot of
the said interim order is that, the Bombay High Court restrained the GOI from
changing the position then obtaining, to the disadvantage of the appellant till
such time a final decision was taken by the GOI qua the Justice Dharmadhikari
Report.
4. The ICPA, being aggrieved, by the order dated 13.03.2012, passed by the
Bombay High Court, preferred a special leave petition bearing no. 13046/2012.
The Supreme Court on 23.04.2012, while issuing notice in the said special leave
petition passed the following order:
"Issue notice.
Operation of the impugned order shall remain stayed pending
further orders of this court.
We make it clear that the training imparted to the members of
the petitioner- association shall remain subject to the final outcome
of the writ petition and shall not prejudice the rights and contentions
FAO(OS) 206/2012 Page 6 of 23
of the writ petitioners before the High Court in any manner.
The High Court is requested to expedite the hearing of the
main petition and dispose the same off as far as possible within six
months."
4.1 Evidently, on 13.04.2012, ICPA became ambitious and filed an IA
bearing no. 2/2012 in the pending special leave petitions preferred by them
seeking broadly that; pilots from erstwhile Air India should not be sent on
training on Boeing 787 aircraft until the ratio of 1:1 is achieved. The said
application was disposed of by the Supreme Court on 02.05.2012, on an
assurance of the respondent that, equal number of pilots would be deputed from
both airlines w.e.f. 08.05.2012. Accordingly, the said IA was disposed of by the
Supreme Court.
4.2 On the very same day apparently representations were sent by the
appellant to the Minister of Civil Aviation, Chairman and Managing Director of
the respondent and the Secretary to the Govt. of India, M/o Civil Aviation. It is
averred that the ICPA also filed a writ petition in this court, in which, the
appellant has been impleaded and permitted to make submissions.
5. What evidently has brought about consternation, in so far as the
respondent is concerned, is the continued confrontationist attitude of the
members of the appellant. The members of the appellant, according to the
respondent, have resorted to illegal concerted actions, which include failure to
report for duty. Consequently, the flights which were scheduled for destinations
such as, New York, Chicago, Toronto on 4th, 5th and 6th May, 2012 had to be
rescheduled, which resulted in delay in excess of 14 hours. The device of
sickness adopted by the members of the appellant forced the respondent to send
the doctors at the residence of the pilots, which revealed in some cases that the
pilots were not sick, and in the others, the concerned pilots refused to co-operate
FAO(OS) 206/2012 Page 7 of 23
with the doctors. It is averred by the respondent that the continued illegal strike
of the members of the appellant had resulted in disrupting the flight schedules,
causing not only inconvenience to thousands of passengers but also a huge
financial loss. It appears that prior to the institution of the suit, the respondent
on account of the impugned actions of the members of the appellant, had to
cancel nearly 24 flights.
6. As averred by the respondent, the strike called by the appellant, is in
violation of Sections 22 and 24 of the Industrial Disputes Act, 1947 (hereinafter
referred to as the ID Act). The reason for labeling the strike "illegal" by the
respondent is the lack of statutory notice before proceeding on strike.
7. We may also note that the conciliation proceedings had also been set in
motion, which required the parties to re-convene on 09.05.2012 at 2.30 p.m.
The premise of such conciliation was that the members of the appellant would
withdraw the agitation and restore normalcy qua operations, and the respondent,
on the other hand, would continue with bilateral discussion with the appellant, to
resolve the stalemate.
8. It appears, given the logjam, the respondent moved this court by way of
the instant suit for permanent injunction and declaration, on 09.05.2012. It is in
the suit that, the impugned order has been passed by the learned Single Judge.
9. To complete the narrative, we may also record that on 10.05.2012 the
respondent filed a contempt petition in the Supreme Court, being : C.P. (Crl.)
No. 3/2012 in the pending Special Leave Petition No. 13046/2012. The
contempt petition came up for hearing before the Supreme Court on 11.05.2012,
when the Court was pleased to post the contempt petition alongwith the Special
Leave Petition after summer vacation.
FAO(OS) 206/2012 Page 8 of 23
10. In the background of the aforesaid Mr Dushyant Dave, Sr. Adv. alongwith
with Mr Darpan Wadhwa, instructed by Ms. Faranaaz Karbhari, Advocate
advanced arguments on behalf of the appellant, while Mr Lalit Bhasin, advocate
alongwith Ms. Neena Bhasin appeared for the respondent/caveator.
10.1 Mr Dave broadly submitted as follows:
(i) The impugned order of the learned Single Judge was without jurisdiction,
in as much as the subject matter of the dispute could be entertained and tried
only by the labour court. In this regard, Mr Dave, drew out attention to Section
7 read with item no. 5 of the second schedule of the ID Act. It was his
contention that the issue pertained to the ―illegality‖ or ―otherwise‖ of a strike
called by the appellant and hence such a dispute could only be entertained and
tried by the labour court. In support of his contention the learned Senior
counsel relied upon the following judgments of the Supreme Court: Rohtas
Industries Ltd. & Anr. vs Rohtas Industries Staff Union & Ors. (1976) 2 SCC
82, Premier Automobile Ltd. vs K.s. Wadke (1976) 1 SCC 496 and Syndicate
Bank & Anr. vs K. Umesh Nayak (1994) 5 SCC 572.
(ii) It was contended that the impugned order was passed in gross violation of
the principles of natural justice, in as much as, the learned Single Judge ought to
have put the appellant to notice before passing an adverse order. Dilating upon
this submission, Mr Dave contended as follows: Firstly, the court ought not to
have passed impugned order in such case. Secondly, the single Judge ought to
have known the law on the issue, i.e., that the jurisdiction qua industrial disputes
lay only with the labour court under the ID Act. Thirdly, if the learned Single
Judge was so disposed as to pass an ex-parte order, it should have recorded
reasons for doing so and in any event could not have given a date beyond thirty
(30) days, since it is incumbent on the court to decide an interlocutory
FAO(OS) 206/2012 Page 9 of 23
application under Order 39 Rule 1& 2 of the Code of Civil Procedure, 1908 (in
short Code) within the said time frame. In this regard reliance was placed on the
provisions of Order 39 Rule 3A. In support of this submission, Mr Dave placed
reliance on the judgment of the Supreme Court in the case of A.
Venkatasubbiah Naidu vs S. Chellappan & Ors. (2000) 7 SCC 695.
(iii) Lastly, it was argued that the appellant need not have approached the
single Judge by way of an application under Order 39 Rule 4 of the Code for
vacation and/or for modifying the impugned order, and that, it could straight
away file an appeal before the Division Bench. In support of this submission
once again reliance was placed on the judgment in A. Venkatasubbiah (supra)
and a Division bench of this court in Shri Jayesh Kanaiya Lal Shukla vs RFCL
Ltd. 2010 (43) PTC 357.
10.2 Mr Dave thus, in nutshell submitted that, the impugned order being
completely without jurisdiction required interference by the appellate court.
11. On the other hand, Mr Bhasin contended that the action of the members of
the appellant was completely illegal and in contravention of Section 22 and 24
of the ID Act. It was further contended that admittedly no notice, which is a
statutory requirement, under Section 22 of the ID Act was served prior to the
appellant calling for a strike. It was Mr Bhasin's submission that the concerted
action of the members of the respondent of reporting sick for duty was nothing
but a strike, and being without notice, was completely illegal. On the aspect of
jurisdiction, it was Mr Bhasin's contention that, the issue raised in the suit was
not a pure industrial dispute but, had its basis in general and common law,
giving it the right to approach a civil court against continued illegal actions
which, affected the passengers and the interest of the respondent. It was Mr
Bhasin's contention that the labour court had no powers to issue final and
FAO(OS) 206/2012 Page 10 of 23
interim orders of the nature sought for by the respondent in the suit and hence,
the jurisdiction of the civil court could not be said to be ousted, as was
contended by the appellant. It was Mr Bhasin's contention that, from time to
time this court, even on earlier occasions, has protected the interest of the
passengers by passing interim directions of like nature as are found contained in
the impugned order.
12. Having heard the learned counsels for the parties and perused the record,
in our view, the following essential facts have emerged:
(i) On 08.10.2011, at a meeting held amongst the representatives of the
appellant, the respondent and the ICPA some sort of agreement was arrived at
(entire details of which may emerge at trial) where the appellant had
communicated that it was willing to consider simultaneous movement of pilots
from both trade unions subject to certain conditions.
(ii) This understanding, however, was given a go-by by the appellant by
shooting of a representation to the respondent on 18.10.2011.
(iii) The aforementioned was followed by the appellant by instituting a writ
petition in the Bombay High Court being WP(C) No. 2399/2011, wherein the
Bombay High Court granted an ad interim order on 13.03.2012. By virtue of
this order, the Bombay High Court directed that the GOI would not change the
position, as obtaining then, to the disadvantage of the appellant.
(iv) The said order was, however, stayed by the Supreme Court on
23.04.2012. This order was passed in the Special Leave Petition filed by the
rival group, i.e., ICPA. In this order the Supreme Court while staying the
operation of the Bombay High Court order observed that the training imparted to
the members of the ICPA, shall be subject to the final outcome of the writ
petition, and that, it shall not prejudice the rights and contentions of the writ
FAO(OS) 206/2012 Page 11 of 23
petitioners (i.e., the appellant herein). The Bombay High Court was also
requested, by the very same order, to expedite the hearing of the writ petition
and dispose of the same as far as possible within six months.
(v) By a subsequent order dated 02.05.2012, the Supreme Court in an
interlocutory application moved by ICPA, observed, while disposing of the
same, that the members from the two airlines would be deputed in equal number
for training on Boeing aircrafts.
(vi) The said Special Leave Petition is pending disposal before the Supreme
Court.
(vii) It also emerged that a contempt petition was moved in the aforementioned
Special Leave Petition, which came up for hearing on 11.05.2012, when it was
directed that the same be posted alongwith the Special Leave Petition after
summer vacation.
(viii) Lastly, Justice Dharmadhikari Committee has submitted its report which
is pending action before the GOI, Ministry of Civil Aviation.
13. Therefore, the issue with regard to whether or not pilots have to be
sourced both from erstwhile airlines, i.e., Air India and Indian Airlines, for
training, in the interregnum, while the writ petition is pending adjudication
before the Bombay High Court, is pending adjudication before the Supreme
Court. There is, therefore, in our view no justification whatsoever on behalf of
the appellant to rock the boat, so to say, and resort to a concerted action which
has resulted in disruption of the operations of the respondent - the impact of
which, is undoubtedly, felt by the unsuspecting passenger. We must note here,
however, that while Mr Dave in the opening had advanced lengthy arguments
(for nearly two hours), on the basis that the action resorted to by the members of
the appellant was a strike, strangely in the rejoinder, Mr Wadhwa, who also
FAO(OS) 206/2012 Page 12 of 23
appeared for the appellant, took the stand that the action resorted to by the
members of the appellant was not a strike within the meaning of the ID Act. On
being asked by the court to amplify his submission, Mr Wadhwa submitted that
the members of the appellant had reported sick and hence their actions did not
come within the ambit and the meaning of the term "strike". Since this
argument destroyed the very edifice of an elaborate argument made in the
opening, by Mr Dave, senior counsel that the legality of a strike cannot be
adjudicated in the civil suit, we specifically put it to Mr Wadhwa, learned
counsel arguing in rejoinder, whether he was sure as regards this aspect.
Learned counsel took the instructions and categorically stated that the stand of
the appellant is that they have not gone on strike. However, Mr Wadhwa
contended that though the plea of the appellant is that they are not on strike, the
plea of lack of jurisdiction qua the subject is based on a demurer. However, on
perusal of the appeal we find that no such case has been set out by the appellant
nor was the case presented in the opening arguments in this manner, as
otherwise there was no need to spend almost two hours in the opening
arguments. Furthermore, on the learned counsel being asked pointedly, as to
whether the members of the appellant were willing to get examined by medical
practitioners, the response was evasive to say the least. The moot question then
arises can the appellant be said to be really aggrieved by the impugned order.
14. This brings us to the question as to whether the impugned order was
without jurisdiction. Having perused the averments made in the plaint, and
having regard to the fact that the Single Judge did not have before her the say of
the appellant, it is quite obvious that the respondent's action is based on general
and common law, though a part of its root may be embedded in the provisions of
the ID Act. Prima facie, it appears to us that a civil court would be an
FAO(OS) 206/2012 Page 13 of 23
alternative forum for agitating the rights which the respondent seeks to pursue in
the suit, before the learned Single Judge. We do not wish to say any more as the
interlocutory application filed by the respondent has yet not been disposed of by
the learned Single Judge. We may only note the principle enunciated by the
Supreme Court in the case of The Premier Automobiles ltd. (supra) to guide the
learned Single Judge in determination of this like issue. These being:
―(i) if the dispute is not an industrial dispute, nor does it relate to
enforcement of any other right under the Act the remedy lies only
in the civil court.
(ii) If the dispute is an industrial dispute arising out of a right or
liability under the general or common law and not under the Act,
the jurisdiction of the civil court is alternative, leaving it to the
election of the suitor concerned to choose his remedy for the
relief which is competent to be granted in a particular remedy.
(iii) If the industrial dispute relates to the enforcement of a right
or an obligation created under the Act, then the only remedy
available to the suitor is to get an adjudication under the Act.
(iv) If the right, which is sought to be enforced is a right created
under the Act such as Chapter VA then the remedy for its
enforcement is either Section 33C or the raising of an industrial
dispute, as the case may be.‖
14.1 These principles are reiterated in the other judgments cited by the
appellant.
14.2 It is not as if it is a clear case, as was strenuously contended by Mr Dave,
of lack of subject matter jurisdiction of the civil court. As a matter of fact, Mr
Wadhwa did contend that the reliefs sought in the suit and the interlocutory
application, which seek prevention of disruption of operations of the respondent,
and injunction on impeding ingress and egress to various offices of the
respondent, were maintainable. In other words, reliefs (a), (c) to (e) were
maintainable. His objection was to the relief sought for in prayer clause (b) of
FAO(OS) 206/2012 Page 14 of 23
the plaint. As to whether interim relief of the nature sought in the suit can be
granted is also an issue which the learned Single Judge will have to address.
15. Apart from the contentions raised by Mr Dave with regard to subject
matter of the jurisdiction, he also alluded to the fact that this court did not have
even the territorial jurisdiction to entertain the suit. In this regard he adverted to
the memo of parties set out in the plaint to demonstrate that the address of the
appellant in the plaint was that of Mumbai. In our view, this submission is
untenable as, a perusal of the averments in the plaint, in particular, paragraph 28
of the plaint, would show that the respondent has pivoted its claim to territorial
jurisdiction of this court in entertaining the suit, on the ground that the strikes
and agitations have been held by the members of the appellant even at Delhi. In
the circumstances, it cannot be said that no part of cause of action arose in
Delhi.
16. As regards the contention of Mr Dave that the learned Single Judge had
acted beyond the mandate of law in passing the ad interim ex-parte order, in our
view, such a contention is completely untenable and misconceived. The
averments made in the plaint and the facts adverted to, by us, hereinabove, leave
us in no doubt that the urgency of the issue and the larger public interest
required the learned Single Judge to grant an ad interim ex-parte order. The
contention of Mr Dave that, the returnable date of notice in the application,
could not extend the period of 30 days, is in our view, again erroneous, as the 30
days period would fall within the vacation period of this court.
17. In any event, as we understand the ratio of the Supreme Court Judgment
in the case of A. Venkatasubbiah (supra), it appears that it is not as if - on the
court issuing a notice, in an interlocutory application, after granting an ex-parte
orders, beyond a period of 30 days would by itself make the order illegal (see
FAO(OS) 206/2012 Page 15 of 23
paragraph 17 at page 700). The court is required under Rule 3A of Order 39, to
make an ―endeavour‖ to dispose of the interlocutory application within a period
of 30 days, where injunction is granted without notice to the opposite party.
The endeavour, in our view, can only be made with the assistance of the
opposite party. This is more so given the hard reality of paucity of judges and
the inability of the court to accommodate all matters, of equal urgency, given
their large numbers at any given point in time. The desire to hear and dispose of
matter of moment and urgency is not lost on the court. But then desire by itself,
would not, help the cause unless the court has requisite resources available at its
command. It is not as if the lawyers are always willing to confine their
arguments to a specific time frame. Elaborate arguments are addressed even in
ex-parte hearing and during hearing of applications for interim relief, in
contested matters. A classic example of this is, the present appeal itself where
arguments were advanced for more than two hours!
18. It is in this context that, we had at one stage suggested to Mr Dave to
approach learned Single Judge byway of an application under Order 39 Rule 4
of the Code. We ought not to be given to understand that, in no circumstances a
litigant can approach the appellate court by way of an appeal, prior to exhausting
the remedy available under Order 39 Rule 4 of the Code. The facts and
circumstances in each case have to be weighed by the appellate court before,
interceding in such like matters. One of the premise on which the appeal has
been predicated is the purported urgency in the matter and the long gap between
the date of the impugned order and the returnable date given by the learned
Single Judge as per the perception of the appellant. The urgency does not
appear to exist at all if one was to consider the arguments made in rejoinder as it
is the case of the appellant that they are not on strike.
FAO(OS) 206/2012 Page 16 of 23
19. In the given case, as noticed above, there is an additional fact, which has
weighed with us in not interfering with the order of the single judge. This fact
is, the action which the GOI is to take, on the report submitted by the Committee
of Justice Dharmadhikari. We have no doubt that given the circumstances
obtaining in the matter the respondent and GOI would act post haste to resolve
the dead lock in the matter.
20. In the end we would like to say that we had asked Mr Dave, senior
counsel for the appellant, to examine the controversy on a larger canvas as the
public interest element was involved. Reasonable suggestions were made by
learned counsel for the respondent that the members of the appellant are the
employees of the respondent and that they should join their duties while
conciliation proceedings can go on. We put this proposal to learned senior
counsel for the appellant specifically as the appellant is in breach of the
injunction order under appeal. Learned counsel, however, was not inclined to
accept such a course of action and insisted that the appellant wanted a legal
finding on the issues raised in the appeal. Thus, our endeavour to find a middle
path was not successful.
21. Before we conclude we must also advert to another aspect which we had
put to Mr Dave during the course of his submissions in court. This aspect
pertains to the continued defiance of the members of the appellant in not
reporting for work even after the passing of the impugned order by the learned
Single Judge. We had specifically put to Mr Dave, as to whether, pending the
institution of the appeal the members of the appellant had rejoined work. Mr
Dave, quite candidly, informed us that, the members of the appellant had not
done so. In our view, no litigant can avail of any discretionary remedy from the
court by willfully and flagrantly disobeying the orders of the Court. In this
FAO(OS) 206/2012 Page 17 of 23
behalf Mr Dave had suggested since the order was without jurisdiction the
members of the appellant could choose to ignore it. This submission is stated to
be rejected. A litigant who is aggrieved by an order of the court should
approach the same court or a superior court immediately to either ask for
suspension or stay of the operation of the order which, according to him, is
unsustainable in law. A litigant cannot allow the order to operate and not
comply with the order. It is trite law that even orders which are without
jurisdiction cannot be ignored by those towards whom the order is directed. It is
also settled law that interim order passed, pending adjudication, on the issue of
jurisdiction have to be complied with. Failure to comply with such orders, can
trigger contempt proceedings against the violator who, can be visited with the
necessary consequences if, found guilty of violating orders of the court. The
following observations of the Supreme Court in Tayabbhai M. Bagasarwalla &
Anr. vs Hind Rubber Industries Pvt. Ltd. & Ors. (1997) 3 SCC 443 makes this
abundantly clear where a similar argument was made:
―15. The next thing to be noticed is that certain interim orders
were asked for and were granted by the Civil Court during this
period. Would it be right to say that violation of and disobedience
to the said orders of injunction is not punishable because it has
been found later that the Civil Court had no jurisdiction to
entertain the suit. Mr Sorabjee suggests that saying so would be
subversive of the Rule of Law and would seriously erode the
majesty and dignity of the courts. It would mean, suggests the
learned counsel, that it would be open to the defendants-
respondents to decide for themselves whether the order was with
or without jurisdiction and act upon that belief. This can never
be, says the learned counsel. He further suggests that if any party
thinks that an order made by the Civil Court is without
jurisdiction or is contrary to law, the appropriate course open to
him is to approach that court with that plea and ask for vacating
the order. But it is not open to him to flout the said order
FAO(OS) 206/2012 Page 18 of 23
assuming that the order is without jurisdiction. It is this principle
which has been recognised and incorporated in Section 9-A of
Civil Procedure Code (inserted by Maharashtra Amendment Act
No. 65 of 1977), says Mr Sorabjee. Section 9-A reads as follows:
―9-A. Where at the hearing of an application relating to
interim relief in suit, objection to jurisdiction is taken,
such issue to be decided by the Court as a preliminary
issue.--(1) Notwithstanding anything contained in this
Code or any other law for the time being in force, if, at
the hearing of any application for granting or setting
aside an order granting any interim relief, whether by
way of stay injunction, appointment of a receiver or
otherwise, made in any suit, an objection to the
jurisdiction of the Court to entertain such suit is taken by
any of the parties to the suit, the Court shall proceed to
determine at the hearing of such application the issue as
to the jurisdiction as a preliminary issue before granting
or setting aside the order granting the interim relief. Any
such application shall be heard and disposed of by the
Court as expeditiously as possible and shall not in any
case be adjourned to the hearing of suit.
(2) Notwithstanding anything contained in sub-section
(1), at the hearing of any such application, the Court may
grant such interim relief as it may consider necessary,
pending determination by it of the preliminary issue as to
the jurisdiction.‖
16. According to this section, if an objection is raised to the
jurisdiction of the court at the hearing of an application for grant
of, or for vacating, interim relief, the court should determine that
issue in the first instance as a preliminary issue before granting or
setting aside the relief already granted. An application raising
objection to the jurisdiction to the court is directed to be heard
with all expedition. Sub-rule (2), however, says that the
command in sub-rule (1) does not preclude the court from
granting such interim relief as it may consider necessary
pending the decision on the question of jurisdiction. In our
opinion, the provision merely states the obvious. It makes explicit
what is implicit in law. Just because an objection to the
FAO(OS) 206/2012 Page 19 of 23
jurisdiction is raised, the court does not become helpless
forthwith -- nor does it become incompetent to grant the interim
relief. It can. At the same time, it should also decide the objection
to jurisdiction at the earliest possible moment. This is the general
principle and this is what Section 9-A reiterates. Take this very
case. The plaintiff asked for temporary injunction. An ad interim
injunction was granted. Then the defendants came forward
objecting to the grant of injunction and also raising an objection
to the jurisdiction of the court. The court overruled the objection
as to jurisdiction and made the interim injunction absolute. The
defendants filed an appeal against the decision on the question of
jurisdiction. While that appeal was pending, several other interim
orders were passed both by the Civil Court as well as by the High
Court. Ultimately, no doubt, the High Court has found that the
Civil Court had no jurisdiction to entertain the suit but all this
took about six years. Can it be said that orders passed by the
Civil Court and the High Court during this period of six years
were all non est and that it is open to the defendants to flout them
merrily, without fear of any consequence. Admittedly, this could
not be done until the High Court's decision on the question of
jurisdiction. The question is whether the said decision of the High
Court means that no person can be punished for flouting or
disobeying the interim/interlocutory orders while they were in
force, i.e., for violations and disobedience committed prior to the
decision of the High Court on the question of jurisdiction.
Holding that by virtue of the said decision of the High Court (on
the question of jurisdiction), no one can be punished thereafter
for disobedience or violation of the interim orders committed
prior to the said decision of the High Court, would indeed be
subversive of the Rule of Law and would seriously erode the
dignity and the authority of the courts. We must repeat that this is
not even a case where a suit was filed in the wrong court
knowingly or only with a view to snatch an interim order. As
pointed out hereinabove, the suit was filed in the Civil Court
bona fide. We are of the opinion that in such a case the
defendants cannot escape the consequences of their disobedience
and violation of the interim injunction committed by them prior
to the High Court's decision on the question of jurisdiction.
FAO(OS) 206/2012 Page 20 of 23
17. In Shiv Chander Kapoor v. Amar Bose2, J.S. Verma, J.
speaking for a three-Judge Bench observed thus, with reference to the statement of law at pp. 351-53 of Wade's Administrative Law (6th Edn.): (SCC p. 247, para 23) ‗[V]oid' is meaningless in an absolute sense; and ‗unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders'. In the words of Lord Diplock, ‗the order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue'
23. In Hadkinson v. Hadkinson11 the Court of Appeal held:
―It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham, L.C., said in Chuck v. Cremer12 (at p.
342):
‗A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it.... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid -- whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.' FAO(OS) 206/2012 Page 21 of 23 Such being the nature of this obligation, two consequences will, in general follow from its breach. The first is that anyone who disobeys an order of the court (and I am not now considering disobedience of orders relating merely to matters of procedure) is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to the court by such a person will be entertained until he has purged himself of his contempt.‖
32. Insofar as Defendant 2 (Shri K.S. Jhunjhunwala) is concerned, the order of the Civil Court holding him guilty of contempt and sentencing him to one month's imprisonment is affirmed.‖ (emphasis is ours) 21.1 The observations of the court also make it clear that just because an objection as to the jurisdiction of the court is raised (assuming the appellant were before the learned Single Judge had raised such an objection) the court is not helpless or incompetent to grant interim relief pending determination of the objection to its jurisdiction.
22. We may also note that in this case, Mr Dave had sought to contend that the respondent had moved an application for contempt before the learned Single Judge, which was withdrawn. Mr Bhasin in rebuttal explained that the said application was withdrawn keeping in mind the fact that such overt action on the part of the respondent, should not result in vitiating the atmosphere that the respondent was seeking to create, to arrive at an amicable settlement with the members of the appellant, to break the ensuing dead lock. 22.1 It would be trite to say that ultimately the issue of disobedience of the order by a litigant is an aspect which is largely between the violator of the order and the court. A party to the litigation may be an initiator of such proceedings but that would not necessarily deprive the court of the power to take cognizance FAO(OS) 206/2012 Page 22 of 23 of such violation by a litigant. In this case, we have no doubt that the members of the appellant are and continue to be in violation of the order of the learned Single Judge. Since we are not entertaining the appeal and the order of the learned Single Judge stands, the members of the appellant would be well advised to comply with the orders of the learned Single Judge, failing which it would be open to the learned single Judge pending decision on the interlocutory application to proceed under the Contempt of Courts Act, 1971, the provisions of Order 39 rule 2A of the Code and the attendant powers which the court has under the Constitution of India, as a court of record, against the members of the appellant.
23. In the aforesaid circumstances, we are not inclined to entertain the appeal.
The appeal is, accordingly, dismissed. The appellant, however, is at liberty to approach learned Single Judge to vacate, modify or vary the impugned order. Needless to say any observations made by us hereinabove, are recorded, only for the purposes disposal of the present appeal. The observations made by us will not impact either the disposal of the pending interlocutory application or the trial of the suit.
24. It is ordered accordingly.
SANJAY KISHAN KAUL, J.
RAJIV SHAKDHER, J.
MAY 17, 2012 kk FAO(OS) 206/2012 Page 23 of 23