Calcutta High Court
Hindusthan Lever Sramik Karmachary ... vs Ashish Chakraborty And Anr. on 21 July, 1989
Equivalent citations: (1989)2CALLT283(HC)
JUDGMENT K.M. Yusuf, J.
1. This is a hotly contested revisional application. The plaintiff-petitioner has moved this Court against the order, dated 14th March, 1989 passed by the Additional District Judge, 5th Court, Alipore, in Misc. Appeal No. 630 of 1989 affirming the order, dated 21st December, 1988 passed by the learned Munsif, 3rd Court, Alipore, in T.S. No. 292 of 1988. Both the Courts below concurred in their decisions by not allowing the interim order of injunction under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. The facts of the case briefly are as under :
The petitioner instituted a suit, inter alia, for declaration that the defendant-opposite parties Nos. 1 to 13 have no right to function as the Executive Committee of the Hindusthan Lever Sramik Karmachary Congress and the Executive Committee of the petitioner-union representing the majority workers is legally constituted and elected Executive Committee having the authority to represent union and also for a declaration that the M/s. Hindusthan Lever Ltd., defendant No. 14, has no right to negotiate or recognise the union represented by the defendants Nos. 1 to 13. According to the petitioner the election of the Executive Committe was held on 27th July, 1987 and it took over the management and affairs of the plaintiff-union and the defendant No. 14 accepted the Executive Committee of the union by its letter dated 14th August, 1987. For some time past the defendant-opposite parties No. 14, i.e., M/s. Hindusthan Lever Ltd. (thereinafter referred to as "the Company") has taken recourse to unfair labour practice detrimental to the interest of the workers and in pursuance to the policy of reducing work for applied to the State Government Labour Department for the retrenchment of 253 workmen of R.I.N. Department but has not as yet got any permission. In January 1988 the Company by notice directed 193 workmen not to attend to work or to enter the factor unless they execute bond for transfer to other department without having deliberation with the petitioner. On 18th July, 1986 the Company entered into an agreement with the plaintiff-Union the schemes for making 160 work men employed as contract-labour for over 20 years as permanent employee by 1990. To evade the agreement the Company started taking recourse to unfair labour practice. The petitioner filed a suit against the Company and moved an application for temporary injunction restraining the Company derecognising the plaintiff-union. The Trial Court having allowed the interim order, the petitioner preferred an appeal and the learned District Judge was pleased to direct the Company to maintain status quo,
2. The Company has recognised an Executive Committee formed by opposite-parties Nos. 1 to 13 consisting of a few dissidents and non-members with the connivance of the Company in most unconstitutional manner without any general meeting and without any regard to the constitution and rules of the union. According to the petitioner, the opposite parties Nos. 1 to 13 have no locus standi or right to represent the plaintiff-union in any manner and owe existence by sheer, collusion with the Company. These opposite-parties are usuing the office of the plaintiff-Union.
3. In the aforesaid circumstances, the petitioner had to file an application, for temporary injunction praying for restraining the opposite-parties Nos. 1 to 13 from representing the plaintiff-Union and from obstructing its legally constituted Executive Committee from functioning and also restraining the Company from negotiating any deal with the opposite parties Nos. 1 to 13.
4. Some of the opposite parties namely opposite-parties Nos. 1, 2, 3, 10 and 14 contested the application along with the Company and their common defence was that the plaintiff-Union Executive Committee elected on 27th July, 1987 is no longer in office and that the said Executive Committee is indulging in various illegal activities detrimental to the interest of the workers and also hampering the production of the Company, By a notice, dated 8th August, 1988 a Special General Meeting was held on 16th August, 1988 when 900 members present at the meeting passed resolution of no confidence unanimously against the existing Executive Committee and elected the opposite-parties Nos. 1 to 13, and the new Executive Committee negotiated with the Company which recognised it on 18th August, 1988 and a bipartite settlements was executed on 18th August itself. In view of the Section 34 of the Specific Relief Act the prayer for interim order cannot be granted to the plaintiff-petitioner as the old Executive Committee has already been removed and the said Executive Committee has no right to represent the Union.
5. As stated hereinbefore, the learned Munsif rejected the petitioner's application for temporary injunction and the learned Judge also dismissed the appeal. Being aggrieved by the order of the learned Judge the petitioner has moved this Court.
6. In a forceful argument Mr. Saktinath Mukherjee, the learned Counsel appearing for the petitioner, submitted that this is an fit case where the High Court should interfere Under Section 115 of the Code of Civil Procedure. He emphasised that Sub-section (1)(c) of Section 115 and proviso (b) of the said Section are fully application to this case. The Lower Appellate Court has acted in the exercise of his jurisdiction illegally and with material irregularity and the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made He referred to Chapter IV-C relating to unfair labour practices and dealt with Sections 25-T and 25-U of the Industrial Disputes Act, 1947. Section 25-T of the Act relates to prohibition of unfair labour practices either by the employer or workman or a trade union and Section 25-U deals with penalty for committing unfair labour practices. He further referred to the Fifth Schedule of the said Act which defines unfair labour practices as contained in Section 2(ra). In this particular Schedule items Nos. 2 and 3 have been specifically singled out by Mr. Mukherjee to pinpoint indulgens in unfair labour practice by the Company. He submitted that at the instigation of and in collusion with the Company a fictitious Special General Meeting was held on 16th August, 1988 on the basis of a notice dated 8th August, 1988 claimed to have been attended by 900 members and a no-confidence motion was passed against the plaintiff-Union's existing Executive Committee and a new Executive Committee consisting of opposite-parties Nos. 1 to 13 was elected. It is the specific finding of the Lower Appellate Court that the plaintiff-Union's Executive Committee as mentioned in Schedule 'A' to the plaint was re-elected by majority of the members for the year 1988-89 in the General Meeting held on 30th June, 1988 in accordance to the constitution of the Union but the Special General Meeting held on 16th August, 1988 was not in accordance with the provisions of the Constitution. Inspite of this finding the learned Judge found the balance of convenience and inconvenience in favour of the opposite-parties Nos. 1 to 13 as they had already started functioning as the new Executive Committee. Also the learned Judge's finding includes that the suit is hit by Section 34 of the Specific Relief Act apart from delay in filing the suit. The learned Counsel further submitted that the learned Judge did not consider the materials on record that except opposite-party No. 3, the rest of the members of the so called newly-elected Executive Committee are not even members of the union and so, in fact, no Special General Meeting of the Union did take place on 16th August, 1988 and the documents annexed to the written objection in the court below are but fictitious. From the documents filed in the Court below it appears that some of the signatures for the so-called requisition Special General Meeting of 16th August, 1988 was taken as far back as on 7th and 10th July, 1988 ; even some signatures for the said meeting of 16th August, 1988 for which notice, dated 8th August was given appeared to have been taken on 14th August, 1988 and the majority of the 201 signatories are not even members of the union. It is further contended that the Executive Committee of the petitioner-Union elected on 30th June, 1988 is still representing the workers of the Company in the industrial dispute pending before the Labour Directorate relating to retrenchment and suspension of 306 workers by the Company. The existing Executive Committee elected on 30th June, 1988 have settled dispute of unfair labour practices on the Dart of the Company and was preparing a Charter of Demand signed by 1100 members as the petitioner apprehended that the Company in collusion with the so-called newly-elected Executive Committee was going to retrench 700 more workers. Mr. Mukherjee took the Court through the judgments of both the Courts below and in particular the finding of the Lower Appellate Court. The learned Judge came to the specific finding, according to Mr. Mukherjee, that the Special General Meeting held on 16th August, 1988 was not convened in accordance with the provisions of the constitution of the Union, But on the basis of the recognition received by the Company, the Court found the balance of convenience in favour of the opposite-parties Nos. 1 to 13. Apart from that the Company's unfair labour practice of entering into the bipartite and tripartite settlements with the so-called newly Executive Committee on 18th August, 1988 (the very day of recognition) and 14th October, 1988 also weighed with the learned Judge. Another defect was the absence of any prayer in the plaint to set aside the election of the new Executive Committee elected on 16th August, 1988 which according to both the Courts below is hit by Section 34 of the Specific Relief Act. On this point Mr. Mukherjee's submission is that the declaration must be as to a legal character of the right to a property belonging to the plaintiff, a negative declaration regarding the defendant is merely a counter-part of plaintiff's right, i.e., that the plaintiff and not the defendant has been duly elected. He further submitted that as for example one's claim that one is the only legal heir and successor of the deceased is maintainable without a prayer for cancellation of a succession certificate granted earlier since the declared decree would prevail over the certificate. On the strength of a Supreme Court Judgment which I shall discuss afterwards he submitted that if there is any lacuna in this respect the plaintiff must be allowed to make necessary amendment if he wanted to do so. He strongly refuted the allegation of the opposite-parties Nos. 1 to 13 that the so-called elected Executive Committee is at all in possession of the office of the Union or is at the helm of the affairs of the union. Mr. Mukherjee submitted that the plaintiff-union is agreeable to hold a fresh election on the basis of the Hon'ble Supreme Court's Order in the case of Philips Workers' Union. He also referred to an unreported Division Bench decision of Calcutta High Court.
7. Mr. Subrata Roy Chowdhury, the learned Counsel appearing for the opposite-parties Nos. 1 to 13 who claim to have been elected by the general body of the workers in place of the plaintiff-union, opened his argument with a prima facie appreciation of balance of convenience and inconvenience which according to him was duly considered by both the Courts below and was found in favour of his clients and as such would not be considered now by this Court Under Section 115 of the Code of Civil Procedure. He submitted that the holding of a fresh election was the prayer of the petitioners before the courts below but the said prayer was rejected after considering the facts and circumstances of the case. He submitted that both the Courts below considered materials at their disposal and came to a definite finding that the new executive body consisting of the opposite-parties Nos. 1 to 13 was duly elected on 16th August, 1988 and this is a finding of fact which has not been challenged in the Courts below by the petitioner. He submitted that complete possession of the entire affairs of the union by the opposite-parties Nos. 1 to 13 is an admitted position and it is also crystal clear that the opposite parties Nos. 1 to 13 are functioning and discharging all the duties of the Executive Body of the Union. In this connection he produced before the Court rent bill paid by his clients for the month of. August 1988 in respect of the office of the Union.
8. Mr. Roy Chowdhury further submitted that the constitution and the rules of the Union does not contain any clause regarding any requisition Special General Meeting but this is immaterial. In this connection he referred to my own Judgment reported in 1989(1) C.H.N. 12 wherein it was held by the division Bench if there was co-option to the executive body without any clause the same was not inconsistent according to the constitution, or rules. In a counter argument Mr. Roy Chowdhury submitted that if the Company has no authority to enter into an agreement with the newly-elected Union, then how the petitioner is ready to accept and admit the benefits given to the workers by virtue of the agreement arrived at by his clients, i.e., the new executive body and the Company. He finally concluded that Under Section 115 of the Code of Civil Procedure no new facts should infiltrate to reverse the judgments of Courts below. He emphasised that the facts not before the Court below under no circumstances can be taken into consideration in the revision application. He also pointed out delay on the part of the petitioner in moving the Court knowing full well that the plaintiff-Union would suffer irreparable loss and injury if the decision of the Appellate Court below is not reversed. Mr. Roy Chowdhury cited a number of decisions which I shall discuss afterwards.
9. Dr. Banerjee appearing for the respondent No, 14, M/s. Hindusthan Lever Ltd., took a strong exception to the argument of Mr. Mukherjee on Sections 25-T and 25-U and Schedule V of the Industrial Disputes Act. He submitted that the provisions of the Industrial Disputes Act were not argued at all before the Courts below and as such the same could not be argued in a revisional application. His whole emphasis was on the point that Under Section 115 of the Code the High Court has no jurisdiction to interfere on facts decided by the Courts below but can only look into any jurisdictional error which can be revised and there can be no interference unless a jurisdictional question is involved. In support of his contention he cited a number of Supreme Court decisions which already have closed the door of interference by High Courts Under Section 115 of C.P.C, unless there is jurisdictional error and material irregularity. Dr. Banerjee submitted that both the Courts below have fully considered all the facts, discussed those facts in detail and came to the finding that the balance of convenience and inconvenience is in favour of the opposite-parties Nos. 1 to 13 and thereafter gave the verdict in favour of those defendants. He has strongly objected to the supplementary affidavit filed in this Court on 18th April, 1989, wherein the petitioner made certain allegations against the Personnel Manager and the Security Officer and submitted that this particular affidavit must not be entertained by the Court. He further contended that Section 34 of the Specific Relief Act does not help the petitioner at all where no prayer for setting aside the election or to declare the election of the new Executive Committee void is made. Answering the allegations made by Mr. Mukherjee that the Company has set up the opposite-parties Nos. 1 to 13 to counter the Executive Body of the plaintiff-Union for the Company's benefit and to the detriment of the interest of the workers, Dr. Banerjee submitted that the Company has every right to see that the work of the Company goes on smoothly undisturbed and not to the detriment of the Company and also it is the duty of the Company to look after the welfare of the workers as well. It is submitted by the learned Counsel that the plaintiff-union is indulging in subversive activities to jeopardise the cause of the Company and to harm its efficiency and output so that the Company undergoes hardships and productive loss. In such a State of affairs it is the duty of the Company to protect the interest as well as the interest of workers who are being victimised by the petitioner-Union. Dr. Banerjee emphasised two points : first, that this Court cannot interfere with the decisions of the Courts below Under Section 115 of C.P.C, and, second, that new arguments bringing in the provisions of the Industrial Disputes Act which were not made before the Courts below cannot be made at this stage thus making out altogether a new case in the High Court He further cited innumerable decisions where the Supreme Court has held non-interference by the High Court Under Section 115 of C.P.C, and also the Supreme Court has laid down the principle that if the decisions of the Supreme Court differ on any point in different cases then the decisions of larger bench will prevail. He also supported the later submission by citing a few decisions.
10. During his argument Mr. Mukherjee referred to two important decisions of the Supreme Court. An important decision of the Supreme Court (A. K. Ghosh and Anr. v. E. X. Joseph) in reply to the allegation of the opposite-parties Nos. 1 to 13 that the petitioner-union with its President and other members started whimisical and unjustified moves which resulted in severe damage to the trade union movement of the workers led by the aforesaid opposite-parties causing severe jeopardy to the vital interest of the workers in the establishment. Mr. Mukherjee while refuting the allegations of those opposite-parties relied on the aforesaid Supreme Court decision to bring home the point that any form of peaceful demonstration is valid and in accordance with law. This decision is based on Rule 4-A of the Central Civil Services (Conduct) Rules, 1955 to the vital question whether this Court can interfere in revision jurisdiction which was so much emphasised in the negative by the opposite-parties. Mr. Mukherjee cited the case of Vinod Kumar Arora v. Smt. Surjit Kaur . Here a Division Bench consisting of the two learned Judges of the Supreme Court held that the High Court is fully justified in rejecting the concurrent findings of fact by two Authorities below when both the Authorities based their findings on conjectures and surmises and they have lost sight of relevant pieces of evidence which have not been controverted. But the Supreme Court also qualified this decision with the observation that the High Court would come to a different conclusion of its own only where the findings have been rendered with reference to facts and not on the basis of non-existent material and baseless assumption.
11. Mr. Mukherjee enforced the decision by citing yet another Supreme Court decision reported in (1969) 1 All. E.R. 208 2 W.L.R. 163 (Union of India v. Tarachand Gupta & Bros.) wherein in paragraph 21 Their Lordships have quoted Lord Reid from Anisminic Ltd. v. the Foreign Compensation Commission reported in (1969) 1 All. E.R. 208 2 W.L.R. 163. There Lord Reid observed as under :
"It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word "jurisdiction" has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the enquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take in account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly".
12. Mr. Mukherjee has cited two further cases as (Sanjay Investments Ltd. v. Nepal Chandra Datta) wherein the Division Bench presided over by Anil Kumar Sen, J. held that an error of lew may, sometimes involve a question of jurisdiction as well. Thus, when a court purports to act under any law which is clearly inapplicable, the erroneous belief as to its applicability leads to assumption of jurisdiction where there is none. In such circumstances, the order of the court is revis-able Under Section 115 of the Code of Civil Procedure. Another decision cited is of Indu Bala Dasi v. Lakshmi Narayan Ganguly and Anr. reported in 38 C.W.N. 1146. This is also a Division Bench decision presided over by Nasim Ali, J. where the scope of Section 115 of C.P.C was in question and the point raised was whether the scope is limited to errors relating to jurisdiction or irregularities of procedure. Section 107 of the Government of India Act was in question relating to power to correct gross injustice by interlocutory order. It was held in this case that Clause (c) of Section 115 of C.P.C, is intended to have a meaning distinct from the other two Clauses ; it does not relate merely to irregularities in procedure ; it has been advisedly left in indefinite language in order to empower the High Court to interfere and correct gross and palpable errors of Subordinate Courts in the ends of justice.
13. Apart from the above cases one more case was cited by Mr. Mukherjee in support of his contention (Baldavdas Shivlal and Anr. v. Filmistan Distributors (India) Ltd. and Ors.) But in my opinion the following four cases do not help Mr. Mukherjee : (1) Indian Oxygen Limited v. Their Workmen which relates to Industrial Disputes Act and I shall discuss this point raised by Mr. Mukherjee afterwards ; (2) the decision in Kumaran v. State of Travancore-Cochin and Ors. reported in AIR 1952 T&C 264 ; (3) the decision in Shankar Ramchandra Abhyankar v. Krlshnaji Datta-traya Bapat ; and (4) the unreported decision of Chittatosh Mookherjee and Mukul Gopal Mukherjee, JJ. in Original Order (Tender) Nos. 849 of 1984 and 2455 of 1983 (Kalidas and Anr. v. Jessops Employees Union and Anr.). As the last one was not a contested matter and the learned Standing Counsel, Mr. Arun Prokash Chatterjee, conceded to the order passed by the Division Bench as such this case is not of much help to the petitioner.
14. Mr. Mukherjee cited Palmer's Company Law, Volume I, 23rd Edition (1982), to bring home the point that "Shareholders have been held to have forfeited their right to requisition a meeting if, in their capacity as directors, they have prevented the board from carrying out its duty to convene a meeting under Section 132 by absenting themselves from directors' meetings, when the result of their absence was (in terms of the particular company's articles) to secure a voting advantage for themselves" (p. 719) and then again quotes from page 853 that "The general clause in the articles vesting the management of the Company in the directors is of great pratical importance : It means that the directors have full powers of management, and are only subject to control by the shareholders in manner laid down by its statute and articles. It further means that the shareholders cannot, by ordinary resolution of the general meeting, exercise a power given to the directors by the articles to overrule the directors when exercising such a power". The principle of English Law referred to hereinbefore has in fact been placed before me to couter-act my own decision in the Division Bench case of Philips Workers' Union which I shall discuss afterwards.
15. On Section 34 of the Specific Relief Act, Mr. Mukherjee cited (Mst. Rukhmabai v. Laxminarayan and Anr.). In this case the Supreme Court held that where the plaintiff ask for a bare declaration though he was in a position to ask for a further relief under Section 42 of the Specific Relief Act hence the suit have been dismissed in limine is not the correct approach. The Supreme Court held that it is now well-settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so and accordingly this plea of dismissal of suit was not allowed to be raised in the Supreme Court.
16. I have already outlined the argument of Mr. Roy Chowdhury. In support of his contention he cited several decisions to the effect that the decree-holder could not be allowed a new case in revision. His whole point was that Under Section 115 of C.P.C, no new facts should infiltrate which, has not been agitated in the court below. In this connection he cited the decisions of K. C. Mukherjee v. Jogia Loharin reported in 42 C.W.N. 437 ; the case of Santosh Kumar Sarkar and Ors. v. the State of West Bengal reported in 78 C.W.N. 980; the case of Sailendra Neogy v. Purnendu Sen reported in 74 C.W.N. 897 ; all decisions of Division Bench of Calcutta High Court. He further enforced his argument by citing a Supreme Court decision (K. Balasubramania Chetty v. N. M. Sambandamoorthy Chetty) werein Their Lordships held that the revision jurisdiction of the High Court is restricted only where a jurisdictional error or illegality or material irregularity in the exercise of jurisdiction is concerned and the High Court cannot interfere as if it was sitting in an appeal which is not permissible. I don't think the case cited by the learned Counsel (Baldevdas Shivlal and Anr. v. Filmistan Distributors (India) Pvt. Ltd. support his contention. Mr. Roy Chow dhury also cited two decisions of the House of. Lords reported in 5 A.C. (1879-80) 473 (The Attorney-General & Ephraim Hatchings and The Directors of the Great Eastern Railway Company) and 1932 A.C, 562 (M'alister v. Stevensan) and as well as L.R. 1932 (1 Ch.) 562 (Attorney-General v. Smethwick Corporation).
17. The Learned Counsel for the opposite-parties Nos. 1 to 13 while emphasising the delay on the part of the petitioner to move the Court cited the decision of Oceanic Industries (India) Pvt. Ltd. v. Commercial Tax Officer and Ors. reported in 78 C.W.N. 803 wherein the High Court declined to interfere as the petitioner was negligent and did not abate himself of the remedy earlier.
18. Mr. Roy Chowdhury cited a Division Bench decision reported in 1989(1) C.W.N. 12 in the case of Philips Workers' Union and Anr. v. The Registrar of Trade Unions and Ors. which was delivered by me to bring home the point that even if the constitution of the union does not specify and procedure for holding a general meeting such meeting cannot be said to be not in accordance to the constitution of the union. In this connection he also placed Administrative Law by H.W.R. Wade, 5th Edition (1982) page 216 (Acts reasonably incidental) where it has been stated that statutory power will, however, be construed as impliedly authorising everything which can fairly be regarded as incidental or consequential to the power itself ; and this doctrine is not to be applied narrowly. This principle is based on the case of the Attorney-General v. The Directors of the Great Eastern Railway Company (supra).
19. A number of decisions were cited by Dr. Banerjee in support of his contention for the opposite-party No. 14, M/s. Hindusthan Lever Ltd. The decision of a Bench consisting of 5 Judges in Pandurang Dhondi Chougule and Ors. v. Maruti Hari Jadhav and Ors.
held that "the High Court cannot while exercising its jurisdiction Under Section 115 of the Code of Civil Procedure, correct errors of fact, however gross they may be, or even errors of law. It can only do so when the said errors have relation to the jurisdiction of the Court to try the dispute itself. It is only in cases where the subordinate court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. Points of law may arise which are related to questions of jurisdiction".
20. In the case of the Managing Director (MIG) Hindusthan Aeronautics Ltd. and Anr. v. Ajit Prosad Tarway reported in 1973 SC 76 a Bench of 3 Judges followed the principle enunciated in (supra) by holding that Under Section 115 of C.P.C, interference by High Court with the order of the Lower Court if within its jurisdiction should not be interferred with even if the order is right or wrong or in accordance with law or not, unless the lower court has exercised its jurisdiction illegally or with material irregularity. He further cited the decision of D.L.P. Housing and Construction Company (P) Ltd. v. Sarup Singh and Ors. with much emphasis. Here the Supreme Court held that while exercising the jurisdiction Under Section 115 of C.P.C. it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. The Court further held that the words "illegal" and "with material irregularity" as used in Clause (c) do not cover either errors of fact or of law ; they do not refer to the decision arrived at but merely to the manner in which it is reached. He further cited the decision (Bhojraj Kunwarji Oil Mill & Ginning Factory and Anr. v. Yograjsinha Parihar and Ors.) where again the Supreme Court was specific that the High Court was not justified in interfering with the order of the Trial Court in exercise of the revisional jurisdiction on the only ground that a different view on facts elicited was possible.
21. To counter-act the reference to the decisions cited by Mr. Mukher-jee on the jurisdiction and the power of the High Court to interfere Under Section 115 of C.P.C, particularly with reference to the case of Vinod Kumar Aurora v. Smt. Surjit Kaur (supra), Dr. Banerjee cited two important decisions to bring home the fact that it will not be proper to strike down the views of 5 Judges in the case reported (supra). In this connection he cited the case of the Union of India and Anr. v. K. S. Subra-manian wherein Their Lordships said that in this particular case the Kerala High Court did not act correctly in skirting the views expressed by larger Benches of the Supreme Court in the manner in which it has done this. The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger Benches of this Court in preference to those expressed by smaller Benches of the Court. This practice is followed by the Supreme Court itself and the practice has now crystallized into a rule of law declared by the Supreme Court. In case the High Court is of the opinion that the views of the larger Benches of the Supreme Court are not applicable to a particular case it should give reasons supporting its own points of view. To further strengthen his submission of this ground he cited the decision of Ujagar Prints v. Union of India wherein Their Lordships held that Judicial discipline requires that a Bench of 2 Judges should not disregard the decision of a Bench of 3 Judges but if the Bench of 2 Judges is inclined to disagree with what has been said by the Bench of 3 Judges on the ground that it does not represent the correct law on the subject, the case should be referred by the Bench of 2 Judges to a larger Bench. I need not discuss here a number of other decisions on the points referred to by Dr. Banerjee to strengthen his submissions. Of course on the merit of the case he cited (United Commercial Bank v. Bank of India and Ors.). This case on the point of Order 39 Rules 1 and 2 of C.P.C. is to the effect that no injunction could be granted unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a bona fide contention within the parties or a serious question to be tried, more so when the plaintiffs have failed to establish that they would be put to an irreparable loss unless an interim injunction was granted. He also cited 42 C.W.N. 437 (supra) which has already been discussed above.
22. I have given my considerate thought to the facts and circumstances of the case and the submissions made by the learned Counsels and also considered the large number of decisions cited before me. The learned Additional District Judge dismissed the appeal of the petitioner and confirmed in toto the decision of the Trial Court. It appears from the judgment of the Court below that the petitioner-Union's Executive Committee was duly elected at the General Meeting held on 27th July, 1987 and reelected in the Annual General Meeting on 30th June, 1988. This has been described by the learned Judge as "the admitted position" but the said election was seriously challenged by the opposite-parties Nos. 1 to 13 (the defendants in the Trial Court). The reelection on 30th June, 1988 for the year 1988-89 was attended by about 1200 members who were signatories to the unanimous resolution passed in favour of the petitioner' Executive Committee. And according to the learned Judge himself this unanimous nature of resolution adopted by 1200 members of the union must be deemed that the petitioner-Union's Executive Committee was reelected by majority of votes and there was substantial compliance of the provisions of the constitution of the said trade union. It also appears from the judgment of the learned Judge that the constitution of the trade union enjoins that a Special General Meeting may be convened by the General Secretary or in his absence by one of the Assistant Secretaries with seven day's notice and two-thirds members will form the quorum. The Special General Meeting that was held on 16th August, 1988 was definitely not convened by the General Secretary or any Assistant Secretary with seven day's notice and the learned Judge himself came to the conclusion that the Special General Meeting held on 16th August, 1989 where opposite-parties Nos. 1 to 13 were elected to the new Executive Body was not convened in accordance with the provisions of the constitution of the Union and as such the petitioners have an ex facie case to go in for trial. In spite of this hard fact on record the learned Judge dismissed the appeal of the petitioner on the plea that the new Executive Committee of the opposite-parties Nos. 1 to 13 was in actual possession of the office of the Executive Committee of the union and if they are restrained from functioning then the employees at large and the Company would be put to immense inconvenience. Further, the learned Judge took the point that the petitioner did not pray for setting aside the election of opposite-parties Nos. 1 to 13 and as such suit as framed is barred Under Section 34 of the Specific Relief Act. One further point was taken of delay on the part of the plaintiff-petitioner that the opposite-parties Nos. 1 to 13 were elected on 16th August, 1988 and they as new Executive Committee started functioning whereas the suit was filed on 23rd August, 1988. The delay as shown by the learned Judge appears to be of seven days only. It appears from a perusal of the judgments of the Courts below that both the learned Munsif and the learned Judge exercised their discretionary jurisdiction in rejecting the petitioners' prayer for temporary injunction.
23. A number of decisions have been cited by Mr. Mukherjee for the petitioner and Dr. Banerjee for the Company for and against the intervention of the High Court Under Section 115 of the Code of Civil Procedure which I have mentioned hereinbefore. Dr. Banerjee has cited the case (supra) wherein it has been clearly stated by a Bench consisting of 5 Judges that the High Court cannot while exercising its jurisdiction Under Section 115 of the Code of Civil Procedure correct errors of fact, however gross they may be, or even errors of law. It can however only do so when the said errors have relation to the jurisdiction of the Court to try the dispute itself. Apart from these Dr. Banerjee pointed-out decisions of Benches consisting of 4 Judges and 3 Judges holding the above view. Dr. Banerjee also cited the decision of Ujagar Prints v. Union of India (supra) wherein it was held that the views of larger Benches must prevail over smaller Benches. But almost all the cases cited by Dr. Banerjee was prior to the Civil Procedure Code (Amendment) Act, 1976 whereas Mr. Mukherjee for the petitioner has cited the post-1976 decision in the case of Vinod Kumar Arora v. Smt. Surjit Kaur reproted in (supra) wherein the Supreme Court in categorical term held that the High Court is fully justified in rejecting the findings of both the Authorities below, even though it is a finding of fact if those Authorities have based their findings on conjectures and surmises and they have lost site of relevant pieces of evidence which have not been controverted. And in my opinion this case directly helps the petitioner. Let me take the Special General Meeting which was convened on 16th August, 1988 on the basis of a notice, dated 8th August, 1988 signed by 201 members and was attended by about 900 members. According to the finding of the lower Appellate Court seven day's notice is required to convene a Special General Meeting but from the objection against the application for temporary injunction filed before the lower Appellate Court by the respondents Nos. 2, 3 and 10 therein it appears that there are a number of signatures in the said requisition notice which are dated 14th August, 1988 whereas the meeting was scheduled according to the finding of the lower Appellate Court of 16th August, 1988. These signatures with dates appear on pages 557, 555 554. Apart from that, the minutes of the Special General Meeting held on 16th August, 1988 contained the signatures of at least two members as dated 10th July, 1988 and 7th July, 1988 and the date below the signature of one member is interpolated. Reference may be made of pages 546, 527 and 523. It is strange how the lower Court overlooked these serious irregularities in the notice for the Special General Meeting and the minutes of the said Special General Meeting, and more so when all the papers were before the Court below. The learned Additional District Judge also did not mention in his findings these extraordinary apparent errors which make the Special General Meeting absolutely illegal. In my views the proviso (b) of Section 115 of the Code of Civil Procedure which has been inserted by the Amendment Act of 1976 gives ample power to the High Court to interfere with the unanimous decisions of the two Courts below on the strength of Vinod Kumar Arora's case (supra) for the ends of justice and also in keeping with the judicial pronouncement of Lord Reid in the case of Anisminic Ltd. v. The Foreign Compensation Commission as quoted in (1969) 1 All. E.R. 208 2 W.L.R. 163 (supra). I quote the relevant Proviso of Section 115 as under :
"Provided that the High Court shall not, under the Section, vary or reverse any order made, or any order deciding an issue, in. the course of a suit or other proceeding, except where-(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury, to the party against whom it was made".
24. It is crystal clear from the facts stated hereinbefore that the Special General Meeting which was called by the 201 signatories contained very serious discrepancy which could not be condoned under any circumstances and as such the meeting held on 16th August, 1988 on the basis of the said notice was absolutely illegal, void and not binding upon the petitioner. Thisis the fact upon which hinges the entire dispute of the two factions of the union led by Tewari Group and Ashish Group and this vital aspect was completely ignored by both the Courts below, thereby inviting the intervention of the High Court under Proviso (b) of Section 115 of C.P.C, otherwise the order of Court below if allowed to stand will occasion a failure of justice and will cause irreparable harm to the plaintiff. Further, it is the finding on record of both the Courts below that there is no provision in the constitution of the union to call a special General Meeting except by the Secretary or one of the Assistant Secretaries. To bring home the point that in case of no provision in the constitution even then a Special General Meeting could be held and in this connection Mr. Roy Chowdhury for the Company cited a Division Bench Judgment delivered by me in the case of Philip Workers' Union and Anr. v. the Registrar Trade Union and Ors. reported in 1989(1) C.H.N. 12. In this judgment I held that the co-option in the 9 vacant posts of the executive members and the post of the Secretary and the Treasurer was in accordance to Clause 9 of the constitution of the said union and the said Clause 9 was as under :
"If any seat of executive member is found to be lying vacant in any unit after the election the new union of the committee may, however, fill up the vacant seat by selection according to suitability".
In my opinion this case does not help the opposite-parties at all and the Special General Meeting and the new Executive Committee fall flat.
25. After the Amendment of 1976 in Section 115 of C.P.C, the nature of the Section has changed and the Court under Proviso (b) get ample power to interfere with the orders of the Lower Court for the ends of justice and to avert failure of justice which might cause irreparable injury to any party against whom the order is made. I have myself delivered the judgment reported in 1989(1) C.L.J. 556 (Ajay Kumar Sinha v. Mrs. Anne Maria Barrato and Ors.) wherein I have held that the High Court must not sit down to scan the evidence and come to its own conclusion in revision and that erroneous finding of facts by the Trial Court or the Court below cannot be regarded that the Court below acted illegally or with material irregularity within the meaning of this section. In this case of Ajoy Kumar Sinha (supra) the Trial Court discussed all the facts and examined the evidence and came to its findings by giving cogent reasons however erroneous or even grossly erroneous those findings might be. But in the instant case the Court below grossly neglected to consider some vital materials on record and give reasons thereon in the finding.
26. The conduct of the opposite-party No. 14, i.e., M/s. Hindusthan Lever Limited, deserves comments after perusing the facts and circumstances of the case. It is patently clear that the Company, in fact, groomed the rival faction of the union led by Ashish Chakraborty and with the help and connivance of the Company the opposite-parties Nos. 1 to 13 were elected in a most shaby manner contrary to the provisions of the constitution of the union to constitute the new Executive Committee. A perual of the facts indicate that the Special General Meeting was held on 16th August, 1988 in which the so-called 900 members of the union passed a no-confidence, motion against the Executive Committee of the petitioner-Union and elected a new Executive Committee consisting of the opposite-parties Nos. 1 to 13 and within 48 hours, i.e., on 18th August, 1988 the Company recognisezed the new Executive Committee and on that very date entered into a bipartite settlement with it and then on 14th October, 1988, a tripartite settlement was entered into with that Executive Body. The more one probes the more it appears that the opposite-parties Nos. 1 to 13 were set up by the Company to further its own objects as those objects were not easy to be fulfilled by the previous Executive Committee of the petitioner-Union. This is the reason why Mr. Roy Chowdhury again and again submitted that the control of the affairs of the union by the newly-elected Executive Committee is an admitted position and functioning of the new Executive Committee is also admitted but the fact is that the control of the affairs of the Union and the functioning of the new Executive Committee are by the unholy connivance of the Compnay and not by free will of choice of the workers which both the Courts conveniently over-looked. The Company's attitude to the new Executive Committee is clear from the submission of Dr. Banerjee that the Company has a right to see that the work of the Company goes on smoothly not to its detriment and also it is the duty of the Company to look after the good of the workers as well. The Company has shown an extraordinary gesture of goodwill to the newly-elected Executive Committee consisting of opposite-parties Nos. 1 to 13 by entering into bipartite settlement on the very day of its recognition by it. It has been rightly submitted by Mr. Mukherjee on the strength of the decision in A. K. Ghosh and Anr. v. E. X. Joseph (supra) that any form of peaceful demonstration in support of the legitimate demand in valid and is in accordance with law in the trade union movement. The demands of the petitioner-union Executive Committee unnerved the Company and by manceuvring and unholy alliance with the opposite-parties Nos. 1 to 13 the Company succeeded some how to bring them into power. I must record disapproval of the way the Company is taking side with a particular faction of the union to promote its own cause and to divide the workers.
27. The delay pointed out by the learned Appellate Court in filing the suit on 23rd August, 1988 after allowing the newly-elected Executive Committee to function does not appear fatal. In fact, the newly-elected Executive Committee does not appear to be functioning smoothly and if functioning at all for limited purposes, it is functioning with the active aid and assistance of the Company. The plea of Section 34 of the Specific Relief Act by the Lower Court also appears not sound and the same is always curable in view of the decision (supra) and on this ground the relief asked for by the petitioner could not be refused but the taking side with a particular faction of the union to promote its own cause ment in the plaint.
28. I fully agree with Mr. Roy Chowdhury and Dr. Banerjee when they contend that no new facts should infiltrate in a revisional application Under Section 115 of the Code of Civil Procedure. It is a fact that the provisions of Sections 25-T and 25-U of the Industrial Disputes Act relating to unfair labour practices either by the employer or workman or a trade union and the penalty relating thereto were never raised before the Trial Court or the Lower Appellate Court and the decisions reported in 42 CWN 437 (supra), 78 CWN 980 (supra) and 74 CWN 897 (supra) are all in their favour. The contention of Mr. Mukherjee on this point cannot stand as those are totally new arguments made before this Court for the first time.
29. It is submitted by Mr. Mukherjee that his client, i.e., the old Executive Committee is still operating the Bank Accounts and out of the 1400 members of the Union 1100 of them supported the plaintiff-Union's Executive Committee. Be that as it may, it appears that in the case of Philip Workers' union (supra), which was referred to by Mr. Roy Chowdhury appearing for the newly-elected Executive Committee, the appeal from the judgment went up to the Hon'ble Supreme Court and the Supreme Court made direction for holding a fresh election of the Executive Committee of the factory unit of the Philip Workers' Union within a specified time for the ends of justice. In view of the Proviso (b) of Section 115 of the Code of Civil Procedure the best course would be to direct the Hindusthan Lever Sramik Karmachary Congress to hold the fresh election of the Executive Committee of the Union under the supervision of two Special Officers to be appointed by the learned Additional District Judge, 5th Court, Alipore, so that the wrangle among the two factions led by Tewari and Ashish must come to an end once for all and the Company must work smoothly and peacefully with the new Executive Committee in accordance with law.
30. In the light of the discussions hereinbefore made and in the circumstances aforesaid I set aside the judgment and order, dated the 14th March, 1989 passed by the learned Additional District Judge, 5th Court, Alipore, in Misc. Appeal No. 630 of 1988. The said learned Additional District Judge is directed to appoint two Special Officers to conduct the election of the Executive Committee of the Hindusthan Lever Sramik Karamchary Congress in accordance with the constitution of the said trade union within a period of two months from the date of their appointment. The learned Judge will be at liberty to give necessary direction to the Special Officers and fix their remuneration. The election should be held by secret ballot and immediately after the election is over the counting shall commence and the result is to be declared by the Special Officers, The Special Officers will be at liberty to take suitable police help for holding and completing the election by declaring the result and the concerned police authorities of the area in-eluding the Deputy Commissioner of Police and the Officer-in-charge of the police station are directed to render all possible police assistance to the Special Officers for the smooth conduct of the election. Liberty is given to the Special Officers to seek direction from the learned Additional District Judge whenever they so require. Whoever is in the management of the affairs of the Union shall hand-over forthwith all the assets, papers, books of accounts, etc., pertaining to the Union, to the Executive Committee which will be elected as per this direction. Till the election takes place and the Jesuit is declared, there will be status quo as of today with regard to the affairs of the Union vis-a-vis the petitioner, the opposite-parties Nos. 1 to 13 and the petitioner No. 14, M/s. Hindusthan Lever Limited. There will be no order as to costs.
31. I must record my thanks to the learned Counsels, Mr. Subrata Roy Chowdhury, Dr. Tapas Banerjee and Mr. Saktinath Mukherjee for their valuable assistance to this Court.
32. Let a copy of the ordering portion of the Judgment be communicated to the learned Additional District Judge, 5th Court, Alipore, immediately.
33. Liberty is also given to the learned Advocates on-Record of the parties to take note of the ordering portion for communication to the Court below.
34. After the Judgment was delivered Mr. Subrata Roy Chowdhury and Dr. Tapas Banerjee appearing for the opposite parties, prayed for stay of operation of the judgment and order for four weeks. But in the facts and circumstances of this case, the prayer for stay is refused.