Calcutta High Court
Standard Chartered Grindlays Bank Ltd. vs Grindlays Bank Employees' Association ... on 4 September, 2001
Equivalent citations: [2002(92)FLR820], (2002)IILLJ174CAL, AIR 2002 (NOC) 17 (CAL), 2002 LAB. I. C. 69, (2002) 1 LAB LN 242, 2002 LABLR 393, (2002) 2 SCT 664, (2002) 8 SERVLR 274, (2002) 92 FACLR 820, (2002) 2 LABLJ 174, (2001) 3 CAL HN 550, (2003) CAL WN 538
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. The application for temporary injunction and the application filed by the defendants or rejection of such application were taken up together for hearing.
2. The plaintiff, a banking company within the meaning of the Banking Regulation Act, 1949 has filed the present suit thereby claiming the following reliefs:
"(a) A decree for Rs. 50 crores (sic) against the defendant Nos. 1 to 23.
(b) A declaration that the defendant Nos. 1 to 23 have no right to resort to activities resulting in the interference with the business of the plaintiff-bank or to cause damage to its properties and documents,
(c) Permanent injunction restraining the defendant Nos. 1 to 23 and each of them by themselves or by their servants, associates, aides, agents, assigns, nominees, supporters and members from:
(i) committing any tortuous (sic) acts interfering and/or obstructing the normal functioning at the main office of the plaintiff-bank in any of its branches and/or offices in any manner whatsoever;
(ii) threatening or intimidating, abusing, insulting, gheraoing and/or wrongfully confining any officer or member of the supervisory staff or any other employees and/or customers of the plaintiff;
(iii) holding any meeting or demonstration or organising unlawful assemblies in or around the main office or any of the offices and/or branch premises of the plaintiff or within 100 yards thereof without previous permission of the plaintiff in writing;
(iv) shouting slogans within a distance of, 100 yards from the main office or any of the branches of the plaintiff in Calcutta;
(v) displaying and/or pasting and/or painting any posters or slogans within or outside the main office or in any of the offices of the branches of the plaintiff or otherwise damaging, destroying, defacing, mutilating, disfiguring or spoiling the property of the plaintiff in any manner whatsoever;
(vi) intimidating any customer or constituent or any willing employees of the plaintiff in any manner whatsoever;
(vii) obstructing ingress to or egress from the main office or any of the offices or branch premises of the plaintiff in Calcutta;
(d) Appropriate orders be passed and/or directions be given on the defendants Nos. 24 to 32 and each of them to render necessary police assistance for the purpose of implementation of and/or giving effect to the orders passed and / or to be passed in these proceedings.
(e) Alternatively an enquiry into damages and a decree for the amount found due on such enquiry.
(f) Attachment.
(g) Receiver.
(h) Costs.
(i) Further or other reliefs."
3. Immediately after filing of the aforesaid suit the plaintiff came up with the present application for injunction against the defendants in the following terms:
"(a) An injunction do issue restraining the respondents Nos. 1 to 23 and/or their servants, assigns, agents, or supporters and/or each of the from:
(i) threatening or intimidating, abusing, insulting, assaulting, gheraoing and/or wrongfully confining and/or hurling abuses on any officer or member of the supervisory staff or any other employees of your petitioner-bank;
ii) holding any meeting or demonstration in and around the branch premises of your petitioner's or any other offices and/or branches of your petitioner in and around Calcutta or within 100 yards thereof without previous permission of your petitioner in writing;
(iii) shouting slogans within a distance of 100 yards from the main office or any of the branches of your petitioner in Calcutta;
(iv) committing any tortuous (sic) acts interfering with normal work at the main any office or any other branches and/or offices in Calcutta of your petitioner in any manner whatsoever;
v) displaying and/or pasting and/or painting any posters and / or slogans in and around the main office or in any of the branches of your petitioner in Calcutta and/or otherwise defacing, damaging, destroying, mutilating, disfiguring or spoiling and or causing damage to the property, documents, records, equipments like computers, floppies or cash of your petitioner in any manner whatsoever;
(vi) persuading or inducing by intimidation, threat or otherwise any employee of your petitioner to abstain from performing his/her normal duties and functions;
(vii) intimidating any customer or constituent or willing worker of your petitioner in any manner whatsoever;
(viii) obstructing ingress to and egress from the said main office or any other branches and/or offices in Calcutta of your petitioner;
(ix) preventing customers/constituents from entering the said main office or any other branches and / or offices in Calcutta of your petitioner;
(b) Ad interim order in terms of prayers (a)(i) to (ix) above.
(c) Appropriate orders be passed and/or direction be given on the respondents Nos. 24 to 32 and/or each of them to render necessary police assistance for the purpose of implementation of and / or giving effect to the orders passed and/or to be passed on this application.
(d) If necessary, a Special Officer be appointed to visit and inspect the places of incident whenever intimated by and or on behalf of your petitioner and submit reports to the Hon'ble Court from time to time upon receipt of such intimations and this Hon'ble Court may be pleased to pass appropriate orders upon consideration of such reports.
(e) Cost of this application be added to the costs of the suit.
(f) Further and/or other reliefs as to this Hon'ble Court may deem fit and proper."
4. The case made out by the plaintiff may be summarised thus:
The plaintiff has its main office in Calcutta at 19, Netaji SubhasRoad, Calcutta 700-001 and also branches at eight different places mentioned in the application.
(b) The respondent Nos. 1 and 13 are trade unions registered under the provisions of Trade Unions Act, 1926. The respondent Nos. 2 to 11 are office-bearers of respondent No. 1. The respondent Nos. 14 to 22 are office-bearers of respondent No. 13.
(c) On May 26, 2001 the plaintiff introduced a voluntary retirement scheme for its staff. The said scheme was open till June 25, 2001. Ever since the plaintiff launched its voluntary retirement scheme, the office bearers, members, supporters, aides, agents and associates of the respondent-union had been resorting to various illegal and criminal activities with a view to put pressure on the plaintiff to withdraw the aforesaid scheme. In particular those persons staged gate demonstration, agitation, stoppage of ingress and egress of customers and management staff and even resorted to criminally intimidating and threatening the officers and staff of the plaintiff and illegally interfering with and/or obstructing the normal functioning of the plaintiff in the offices and the branches.
(d) The respondents Nos. 1 and 13 and their respective office- bearers, members aides, associates, agents and supporters had been shouting slogans in or around the various office and/or branch premises, of the plaintiff during working hours, forming unlawful assembly in and around the office of the various branch premises threatening the officers and loyal employees and also hurled abuses at the management thereby interfering with free ingress to and/or ingress from the offices and branch premises.
(e) On July 17, 2001 it came to notice of the plaintiff that the respondent-unions had decided to go on strike from July 18, 2001 onwards. On July 18, 2001 the office bearers and the members of the respondent-unions struck work at all the branches and offices of the plaintiff. The office-bearers, members, supporters, agents etc. had obstructed the entrances to the offices and/or, branches and blocked ingress to and egress from the said offices and branches. They had forced the security personnel, management staff, customers and visitors to leave the offices or branches since the afternoon on July 18, 2001. Inside the bank premises the bank has vaults containing huge cash money and other valuable instruments which would be easily misappropriated by the delinquent workers and their associates and anti-socials.
(f) Apart from preventing willing employees of the plaintiff from entering the offices, the office-bearers, members and associates of the unions were threatening such employees with dire consequences and physical violence at the various branches of the bank including 19, Netaji Subhas Road, Calcutta, 41, Chowringhee Road, 6, Church Lane, 21 A, Shakespeare Sarani, 139, Bidhan Sarani which are within the jurisdiction of this Court and also at 163. Rash Behari Avenue, 1/425 Garahat Road, South, 175 A, Nalini Ranjan Avenue and CF 347, Sector-1, Salt Lake, Calcutta.
(g) By reason of the wrongful acts as aforesaid no business or work could be transacted in any of the aforesaid offices and/or branches since the afternoon of July 18, 2001.
(h) The respondent-unions and their office-bearers and/or supporters had threatened to gherao and / or wrongfully confine the officer and loyal employees of the plaintiff
(i) By reason of the aforesaid wrongful, illegal and tortuous acts of the respondent Nos. 1 to 23, the bank has suffered huge loss and damages and prejudice. Besides, the above property of the plaintiff as also the safety of its officers and employees are in jeopardy. By reason thereof there is grave risk of further loss and damage to the plaintiff and also damages to and destruction of the property of the plaintiff as also physical violence and/or injury to its officers.
(j) Although several representations were made to the police authorities requesting them to take steps to protect the officers, employees and also the properties, but the police authorities were acting in complete abdication of their statutory duty and obligation conferred upon them under the Police Act, 1861 and the Rules and Regulations framed thereunder,
(k) By reason of the wrongful acts of the respondents Nos. 1 to 23, their members, supporters, etc., the plaintiff was constrained to move an application under Section 144(2) of the Criminal Procedure Code in respect of 19, Netaji Subhas Road, Calcutta branch of the bank before the Executive Magistrate, 10th Court and by order, dated July 18, 2001, the Executive Magistrate, 10th Court, Calcutta, directed the Officer-in-Charge, Hare Street Police Station, to see that no breach of peace took place at the said branch premises and further directed that the police picket as sought for might be posted to maintain public peace at the said branch.
(l) In spite of the aforesaid order the concerned respondent had taken no steps to comply with the said direction.
(m) The respondents Nos. 1 to 23 their members and associates had already thrown out the plaintiffs security personnel and their officers, management staff and loyal employees and the documents and assets of the plaintiff/bank were in the control of the delinquent employees who belong to the two respondent-unions. They have denied and/or interested to deny the said right of the plaintiff to carry on its banking business.
5. On the aforesaid application this Court by order, dated July 19, 2001, directed the plaintiff to serve the copy of the application upon the respondents and after being satisfied with the prima facie case of the plaintiff passed an interim order of injunction in terms of prayers (a)(i) to (ix) for a period of fortnight from that date or till the disposal of the application whichever is earlier.
6. After entering appearance, the respondent-unions have filed affidavit-in-opposition thereby opposing the prayer of the plaintiff and also have filed a separate application for vacating the interim order and dismissal of the application for injunction by taking various grounds including the question of maintainability of the suit itself.
7. The defences taken by the unions in their affidavit-in- opposition to the application for injunction and also in their separate applications for temporary injunction can be summed up thus:
(a) The plaint does not disclose any cause of action inasmuch as the same is barred under Section 18 of the Trade Unions Act, 1926.
(b) It would appear from different FIRs mentioned in the application for injunction that no allegation of any criminal intimidation or shouting of slogans were mentioned in those FIRs.
(c) The application is also liable to be dismissed for suppression of the material facts inasmuch as being dissatisfied with the illegal and wrongful acts of the plaintiff and industrial dispute with regard to transfer of some employees was raised by the unions and accordingly the Regional Labour Commissioner (Central) as Conciliation Officer issued a notice for holding a meeting on June 25, 2001 by a letter dated June 21, 2001. Following the aforesaid meeting in which the plaintiff also participated, the matter was adjourned till July 24, 2001. The plaintiff did not participate in the conciliation on July 24, 2001 but approached this Court on July 19, 2001 and in total suppression of the aforesaid facts institute the said suit and filed the application for injunction.
(d) Although an illusion about certain criminal acts or intimidation was sought to be given in the application for injunction without any particulars as required under Order 6, Rule 4 of the Code of Civil Procedure, those allegations are absolutely baseless.
(e) In view of provisions contained in Section 18 of the Trade Unions Act, the defendants have a right to hold demonstration in respect of a trade dispute or in furtherance of a trade dispute and no suit or other legal proceedings would not be maintainable in any civil Court against any registered trade union or any office- bearer or members thereof for adjudicating those facts.
(f) If the reliefs are scrutinised, it would appear that each of those reliefs, would vitally affect the right of the unions to ventilate their grievance against the tyrannical act of the management. The order passed by this Court clearly interferes with the right of the trade unions to any on their protest in a peaceful manner.
(g) The defendants had not committed any tortuous act nor any particular has been given by the plaintiff of such act.
(h) The defendants were holding peaceful demonstration in furtherance of their trade dispute and as such those acts are fully authorised and protected.
(i) After the plaintiff introduced a voluntary retirement scheme with a motive to put pressure on the employees to succumb to the dictates of the management and to force them to take the benefit of the said scheme, the plaintiff illegally transferred about nine employees from RMC to a branch at Darjeeling which would be closed down very soon in terms of the policy-decision of management. The notice of such transfer was issued on June 20, 2001 and those employees were asked to join the duty on June 27, 2001. Since those employees did not give in to the pressure of the management, the plaintiff has come up with the instant suit.
(j) By reason of illegal and high handed act of the management, the respondent-unions have merely held peaceful demonstration and never obstructed willing officers and staff to discharge their function nor did they prevent any of them from entering into or coming out of the office. It was denied that the respondents or its members had resorted to any act of intimidation.
8. Sri Mitra, the learned counsel appearing on behalf of the defendants has attacked the application for injunction on various grounds.
9. First, Sri Mitra contends that the dispute involved herein being a trade dispute, a civil Court has no jurisdiction to entertain the present dispute and the suit is thus liable to be dismissed.
10. Secondly, Sri Mitra contends that although a suit is maintainable if any allegation of committing tortuous act is made, in the instant proceedings no particular or definite allegation of such tortuous acts having been mentioned, the Court should dismiss this application for non-compliance with the provisions contained in Order 6, Rule 4 of the Code of Civil Procedure.
11. Thirdly, Sri Mitra contends that the dispute involved herein being industrial dispute, his clients have right to demonstrate peacefully even within the office compound so long there is no criminal acts on the part of his clients and thus this Court should not in the absence of any material showing that the defendants are guilty of committing criminal acts pass any order of injunction.
12. Sri Pal, the learned counsel appearing on behalf of the plaintiff has on the other hand opposed the aforesaid contentions of Sri Mitra and has submitted that in view of provisions contained in Section 36AD of the Banking Regulation Act, 1949, any demonstration which prevents the transaction of normal business by a banking company is illegal. According to Sri Pal the acts complained of herein are calculated to undermine the confidence of the depositors in the banking company and as such those acts do not come within the immunity of trade disputes within the meaning of Section 18 of the Trade Unions Act.
13. As regards the allegation of non-compliance of Order 6, Rule 4 of the Code of Civil Procedure Sri Pal contends that the allegations made herein are quite definite. According to him in pleadings his client is not required to give evidence but only disclose material facts. He submits that the defendants have duly filed affidavit-in-opposition denying those allegations and as such the contention of Mitra that those are vague is baseless. At any rate Sri Pal contends, if the defendants are of the view that any allegation is not clear they are at liberty to apply for better particulars but not having claimed any better particular, the defendants cannot pray for dismissal of the application itself on such alleged ground.
14. Lastly Sri Pal contends that in this case from the annexures to the application including allegations made in the application under Section 144(2) of the Code of Criminal Procedure it is clear that due to illegal activities of the defendants the normal business of the bank could not be carried on. Sri Pal submits that the defendants cannot be prejudiced in any manner if an order of injunction is passed restraining them from doing any criminal activities unless they really indulge in such activities. Sri Pal thus prays for making the interim order absolute.
15. In reply to the aforesaid submissions made by Sri Pal, Sri Mitra contends that the provisions contained in Section 36AD of the Banking Regulation Act, 1949 are not in conflict with the right of trade unions as mentioned in the Trade Unions Act. He submits that provisions contained in Section 36AD of the Banking Regulation Act give remedy of a criminal nature and can be enforced only through a criminal Court but those provisions are not enforceable by a civil Court. He further draws attention of this Court to Section 36-AD(2) which says that a person can be convicted for the violation of the acts mentioned in Section 36-AD(1) only if he does such act without any reasonable excuse. Sri Mitra submits that the aforesaid phrase "without reasonable excuse" has been introduced indicating that one can get rid of the said penal provision if there is reasonable excuse for doing such act. According to him, an act in furtherance of trade dispute as an instance of "reasonable excuse".
16. After hearing the learned counsel for the parties and after going through the materials on record I am unable to accept the contention of Sri Mitra that the application should be dismissed for non-compliance with the provisions of Order 6, Rule 4 of the Code. It is rightly pointed out by Sri Pal that in pleadings the parties are not required to disclose their evidence but only material facts should be stated so that the other side can dispute such allegations and there is no surprise at the time of trial. In the instant case, the defendants have filed affidavit-in-opposition controverting the allegations and have also put forward their defences. Therefore, this is not a case where the defendants are not in a position to dispute the allegations made in the application for vagueness. Moreover, it is rightly pointed out by Sri Pal that no formal application has been filed claiming better particular of any specific allegation. I thus find no substance in the contentions of Sri Mitra that the application is liable to be dismissed on the ground of vagueness.
17. The next question is whether this Court has jurisdiction to entertain the disputes involved in the present proceedings. For the purpose of appreciating the aforesaid question it will be profitable to refer to the provisions contained in Section 18 and Section 2(g) of the Trade Unions Act and those contained in Section 36AD of the Banking Regulation Act; those are quoted below:
"Section 18. Immunity from civil suit in certain Cases, (1) No suit or other legal proceeding shall be maintainable in any civil Court against any registered trade union or any office- bearer or member thereof in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the trade union is a party on the ground only that such act induces some other person to break a contract of employment, or that is in interference with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or of his labour as he wills.
(2) A registered trade union shall not be liable in any suit or other legal proceeding in any civil Court in respect of any tortuous act done in contemplation or furtherance of a trade dispute by an agent of the trade union if it is proved that such person acted without the knowledge of or contrary to express instructions given by the executive of the trade union.
Section 2(g).- 'Trade dispute' means any dispute between employers and workmen or between workmen and workmen, or between employers and employers which is connected with the employment or non-employment or the terms of employment or the conditions of labour, of any person, and 'workmen' means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises.
Section 36AD- Punishment for certain activities in relation to banking companies.-(1) No person shall,-
(a) obstruct any person from lawfully entering or leaving any office or place of business of a banking company or from carrying on any business there; or
(b) hold, within the office or place of business of any banking company, any demonstration which is violent or which prevents, or is calculated to prevent, the transaction of normal business by the banking company; or
(c) act in any manner calculated to undermine the confidence of the depositors in the banking company.
(2) Whoever contravenes any provision of sub-section (1) without any reasonable excuse shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
(3) For the purposes of this section banking company includes the Reserve Bank, the Development Bank, the Exim Bank (the Reconstruction Bank) (the National Housing Bank, the National Bank, the State Bank of India, a corresponding new bank, a Regional Rural Bank and a Subsidiary Bank)."
19. On a conjoint reading of Sections 18 and 2(g) of the Trade Unions Act, 1926, it is clear that a Civil Court has no jurisdiction to entertain a suit if in such a suit any act done in contemplation or furtherance of a trade dispute by a member of the trade union is the subject matter and such suit is based only on the ground that such act induces some other persons to break a contract of employment or that it is in interference with trade, business or employment of some other persons or with the right of some other person to dispose of his capital or his labour as he wills. Sub-section (2) of Section 18 however clarifies that a civil Court is not debarred from entertaining a suit if such act as mentioned above also amounts to a tortuous act. However, if the trade union can prove that such person acted without the knowledge of or contrary to the express instruction given by the executives of the trade unions, it can escape its liability. Thus, in order to exclude the jurisdiction of the civil Court it must be proved that the sole subject matter of the dispute is a trade dispute not amounting to any tortuous act causing injury to the plaintiff.
20. Section 36AD of the Banking (Regulation) Act has been however incorporated long thereafter on February 1, 1969 and is applicable only to a banking company. So far as Section 36AD of the Act is concerned, the first part of the same refers to tortuous act and is thus in no way in conflict with the provisions of Section 18 of the Trade Unions Act. But the last part of Section 36AD(1)(a) of the Act enjoins that obstructing any person from carrying any banking business at office or place of business is prohibited aid punishable. Similarly, provision contained in Section 36AD(1)(b) makes even peaceful demonstration within the office or place of business of any banking company illegal if the same is calculated to prevent the transaction of normal business by banking company. Sub-section (c) of Section 36AD makes any act which is calculated to undermine the confidence of the depositor in the banking company punishable. Thus the abovementioned parts of Section 36AD were enacted by the Legislature knowing fully well that those acts were permissible in the field of trade disputes.
21. Sri Mitra in this connection placed strong reliance upon the maxim "generalia specialibus non derogant and by referring to CRAIES on STATUTE LAW, Seventh Edition contended that when the Legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly.
22. In my view, when by subsequent enactment the Legislature makes some acts which are otherwise permissible in furtherance of trade dispute punishable with imprisonment, it manifests its intention that those acts henceforth cannot be treated as "in furtherance of trade dispute." I am unable to accept the contention of Sri Mitra, that the words "without any reasonable excuse" appearing in Section 36AD(2) means that a person after committing such offence can take the plea of "trade union activity" as a defence. It is now settled position of criminal jurisprudence that certain acts are treated as reasonable excuse in criminal proceedings; those are enumerated in Chapter IV of the Indian Penal Code starting from Section 76 ending with Section 106 thereof, for instance, duress, private defence, consent, involuntary intoxication, insanity, infancy and entrapment are some of the examples of reasonable excuses. As in the Banking Regulation Act there is no other provision imposing punishment and there is no provision like Chapter IV of the Indian Penal Code, the Legislature has incorporated the word "reasonable excuses" in the said section so that an accused can get protection of the aforesaid excuses. But at all events trade union activity can never be put forward as a reasonable excuse in defending a criminal offence.
23. Therefore, in my view, once a particular activity is brought within the purview of Section 36AD of the Act the same ceases to be a trade dispute and thus the protection of Section 18(1) of the Trade Unions Act is also not available to such act.
24. I am also not at all convinced by the submission of Sri Mitra that the only remedy of an aggrieved person for enforcing Section 36AD of the Act is to come before criminal Court and that in a civil Court the same cannot be enforced. It is now settled position of law that an act even though criminal in nature if causes injury to a person or property of a person, a civil Court can grant injunction preventing apprehended injury to such person by virtue of such criminal acts. (See KERR on injunction sixth Edition by J.M. PATERSON at page 8; Kedarnath v. S.K. Ghosh and Anr. 61 C.W.N. 789.
25. On consideration of the materials on record I am thus of the view that if the case of the plaintiff as stated in the application for injunction is believed, it is established that the demonstration of the defendants has in fact prevented the transaction of the normal business by the bank and thus definitely falls within the purview of Section 36AD(1) of the Banking (Regulation) Act. Therefore a civil Court is quite competent to enquire into these allegations and if it is prima facie proved that the defendants are guilty of such acts, can pass an appropriate order of injunction.
26. Now turning to the prayers made in the application I find that except prayers (ii), (iii) and first part of (v) all are made to prevent acts of the criminal nature and also touch enjoyment of right in property and thus a civil Court can entertain such dispute. However, as regards prayers (ii), (iii) and first part of (v), I have already indicated that holding of any meeting or demonstration in or around the branch premises or in any other offices or shouting of slogan or displaying or pasting or painting any poster or slogan in or around the office premises of bank definitely undermine the confidence of the depositor in the banking company and also interfere with the normal business of the bank and thus a civil Court in an appropriate case can also grant those prayers made in the application.
27. I now propose to deal with the decisions cited by Sri Mitra.
28. In the case of Bishnu Deo Narain and Anr. v. Seogeni Rai and Ors. , it was held that in case of coercion, when a Court is asked to find that a person was threatened with death, it is necessary to give particulars as to the nature of the threat, the circumstances, the date, time and place in which it was administered and the name of the person threatening. In the absence of such particular, it was held, it would be impossible to reach a proper conclusion.
29. In the said case what was the nature of threat was not disclosed nor was any statement made as regards date, time and place in which it was administered and it was not even stated who did the threatening. Under such circumstances, the Supreme Court made the aforesaid observations.
30. In the present case the plaintiff has stated that the defendants and/or their members, aides and supporters, etc. were committing those acts in and around the office premises from the date of strike, viz., July 18, 2001 and the nature of activities have also been described, viz., criminal trespass, illegal agitation, unlawful assembly, obstruction of ingress and egress, threatening the loyal staff customers etc. Therefore, the principle laid down in the said decision cannot have any application to the fact of the present case.
31. In the case of Azhar Hussain v. Rajiv Gandhi the Apex Court was considering whether sufficient materials for maintaining an application for setting aside election under Representation of Peoples Act were present.
Section 83 of the said Act clearly enjoins that an election petition shall set forth fully particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of commission of each of such practice.
32. In the said petition, the allegation was that one Sri M.H. Beg who was at one time the Chief Justice of Supreme Court of India and a close friend of Nehru family appeared on the Government controlled news media and made a speech praising the respondent and comparing his entry into politics as birth, of new Arjuna, the insinuation being that the opposition were the Kauravas. According to the applicant, propaganda about Sri Beg's was done particularly amongst the members of the Muslim Community, Apart from being gross misuse of the office of Chairman of the Minority Commission, the same constituted, according to the applicant, gross corrupt practice under election law.
33. While considering the aforesaid case the Apex Court held that it was not mentioned as to who procured or obtained the services of Sri Beg in what manner he obtained the services and what were the facts which went to show that it was with the consent of the respondent. According to the Apex Court, unless these essential facts which would clothe the information with a cause of action and which will call for an answer from the returned candidate are pleaded, it cannot be said that the petition discloses a cause of action in regard to this charge.
34. In the present case, the plaintiff has made definite allegations against defendants who are named and the time, place and the nature of allegations have also been mentioned. In my view, in this type of allegations it is not necessary that plaintiff is required to disclose the names of the associates of the defendants in detail who acted in support of defendants. Over and above, in the instant case the defendants have specifically denied those allegations stating that their agitation was peaceful. Thus, the principle laid down in the said decision cannot have any application to the present case and the plaint of the present suit cannot be dismissed on the ground of non- disclosure of any cause of action.
35. In the case of Baranasi Sanskrit Viswavidyalaya and Anr. v. Dr. S. K. Tripathi , an allegation of collusion was made but there was no particular as regards that allegation. Under such circumstances, Court refused to accept the' allegation of collusion.
36. In the case of ITC, Ltd. v. Debts Recovery Appellate Tribunal and Anr. , in a suit filed by bank claiming back the amount paid by it to the seller under the letter of credit on mistaken assumption that supply of goods had been made by the seller to the buyer whereas in fact there was no movement of goods and the seller had fraudulently obtained payment towards trading balance dues, an application was filed for rejection of the plaint on the ground that there was no allegation of fraud. In such a case, the Apex Court held that since mere non-supply of goods will not give rise to a plea of fraud, a repeated use of the word "fraud" in the plaint was not sufficient to disclose cause of action. In my view, there cannot be any dispute with the aforesaid proposition of law; but the said decision cannot have any application to the fact of our present case.
37. In the case of Kuldip Singh v. S.C. Jain and Ors. , the Supreme Court was considering a suit which was filed seeking injunction against Municipal Corporation to restrain it from issuing licence sought for by defendant/appellant for running a business of baking oven for bakery. During the pendency of the suit licence under Section 42 of the Punjab Municipal Corporation Act was granted by the Municipal Corporation to the appellant. In the fact of such case it was held that grant of licence being a statutory function of Municipal Corporation and the licence having already been issued, the plaintiff could approach the Municipal Corporation for appropriate relief. But in the absence of clear foundation either in pleading or in evidence, no case for quia timet action was made out. It was further held that quia timet is action preventive in nature and a specie of precaution justice intended to prevent apprehended wrong or anticipated mischief but not to undo a wrong or mischief when it has already been done. In such an action, the Court, if convinced, may interfere by appointment of Receiver or directing security to be furnished or by issuing an injunction or any other remedial process. I fail to understand how the aforesaid decision can be of any help to Sri Mitra's clients.
38. In the case of Kameshwar Prasad and Ors. v. State of Bihar and Anr. it was held that a demonstration is a visible manifestation of the feelings or sentiments of any individual or a group. It is thus a communication of one's ideas to others to whom it has intended to be conveyed. It is in effect therefore a form of speech or of expression because speech need not be vocal, since signs made by a dumb person would also be a form of speech. According to the Supreme Court, a peaceful and orderly demonstration would fall within the freedom guaranteed under the Constitution of this country. There is no dispute with the aforesaid proposition of law enunciated by the Apex Court but the question is whether a demonstration within the premises of the bank causing stoppage of the banking business or calculated to undermine the confidence of the depositors is permissible. In view of the provision of Section 36AD of the Banking Regulation Act, such demonstration is illegal. It will not be out of place to mention here that in the said decision the Apex Court had no occasion to consider the provision of Section 36AD of the Banking Regulation Act which came into operation long thereafter. Thus, the said decision cannot assist Sri Mitra's clients in any way.
39. In the case of Reserve Bank of India v. Ashis Kumar Sen reported in 73 C.W.N. 388, although the decision was delivered on February 7, 1969 six days after the coming into operation of Section 36AD of the Banking Regulation Act, it appears that the learned Judge did not take into consideration the effect of the aforesaid provision in the said judgment. There is no dispute with the proposition laid down therein in the absence of the said provision but the said decision cannot be an authority for the proposition that even on the face of the enactments contained in Section 36AD of the Act, the defendants are entitled to create demonstration inside the bank premises thereby stopping the normal banking business. Thus, the said decision cannot be relied on in this case for the purpose of showing that the Section 36AD of the Act does not stand in the way of the defendants in demonstrating even within bank premises.
40. In the case of Bharat Petroleum Corporation, Ltd. v. Petroleum Employees' Union and Anr. reported in 2001-11-LLJ-81, the Bombay High Court was considering whether a suit restraining the employee to go on strike can be brought before civil Court; in my view, although there is no dispute with the proposition laid down therein, but the same cannot have any application to a case of demonstration preventing banking business in view of provisions contained in Section 36AD of the Banking Regulation Act.
41. Something can be said about the Special Bench decision of this Court of the case of Joy Engineering Company Ltd. v. State of West Bengal and Ors. , as in the said decision, this Court had no occasion to consider the scope of Section 36AD of the Act.
42. In the case of Indian Bank v. Federation of Indian Bank Employees' Union and Anr. reported in 1982-I-LLJ-123 (Mad) learned single Judge of the Madras High Court was considering a case where a nationalised bank prayed for temporary injunction against the employees' union restraining them from holding meetings, demonstration etc. within a radius of 50 metres of the office. The learned Judge after relying upon the decision of the Apex Court in the case of Kameshwar Prasad v. State of Bihar (supra), and of this Court in the case of Joy Engineering (supra) held that no injunction should be granted against peaceful demonstration and in the facts of the said case refused to grant any injunction. It appears from the said judgment that attention of the Court was drawn to the provisions contained in Section 36AD of the Banking Regulation Act but the Court did not deal with the question whether in view of the said provision even a peaceful demonstration should be held to be illegal if it affects the normal transaction of the bank. In Para 39 of the judgment the Court merely made a passing reference of the aforesaid provision and in Para. 40, it recorded the following observations 1982-I-LLJ-123 at p. 139;
"... As for the protection that can be claimed under Sections 17 and 18 of the Trade Unions Act, in the light of the elaborate discussion on this aspect found in and , it is unnecessary to deal with this aspect at length, except to hold, following the said decisions that if any act is committed, resulting in unlawful activities and which would constitute cognizable offences under Indian Penal Code or other special enactment like Banking Regulation Act, etc., the immunity available under Trade Unions Act, would not be available."
43. Thus the aforesaid observations rather support Sri Pal's contention that once an act becomes punishable, it loses its protection under the Trade Unions Act.
44. Therefore, the decisions relied upon by Sri Mitra are of no avail to his clients.
45. Now, the question is whether the plaintiff has been able to prove prima fade the allegations made in the application for injunction.
46. In the application for injunction, the plaintiff has made serious allegations against the defendants. According to the allegations, the defendants, their members, supporters, aides and associates were obstructing the entrance to the offices and forced the security ; personnel, management staff, customers and visitors to leave the office. The further allegation is that the respondents were threatening the loyal employees with dire consequence and physical violence as a result no business or work could be transacted from July 18, 2001. The plaintiff had made request to the police authority seeking their help. The plaintiff also filed application under Section 144 of the Code of Criminal Procedure apprehending breach of peace and obtained order from the Executive Magistrate.
47. The defendants, although denied the allegations of tortuous acts and criminal activities in their affidavit-in-opposition, did not dispute the fact that a strike was called at their instance but asserted that their demonstration was peaceful and claimed that they had right to make peaceful protest.
48. I have already indicated that the provisions contained in Section 36AD of the Banking Regulation Act prohibits not, only violent demonstration but also a non-violent one, if such demonstration prevents or calculated to prevent the transaction of the normal business of the bank. The agitators have no right to protest in a manner calculated to undermine the confidence of the depositors.
49. That the protest of the defendants has affected the normal transaction of the bank is established in this case. Although no specific allegation that the activities of the defendants have undermined the confidence of the depositors has been made by the plaintiff in so many words but it is apparent that this type of activity in a banking business is bound to undermine confidence of the depositors.
50. If demonstration or even "peaceful hindrance" to the normal transaction continues in the bank, such facts invariably shake the confidence of the depositors and the depositors will seriously think of severing relationship with such a bank and taking shelter under a different banking company. For the above reason, the Legislature thought of enacting such a drastic provision even at the risk of curtailing the "rights in furtherance of trade dispute" making those punishable.
51. Therefore, in my opinion the plaintiff has proved a strong prima facie case of illegal activities by the defendants. In this type of a case, the balance of convenience and inconvenience is definitely in favour of granting injunction inasmuch as if the depositors start abandoning, the plaintiff being disgusted with the regular interruption in the normal banking transaction, the plaintiff will suffer irreparable loss and injury which may not be compensated in future in the event of the suit being decreed in the long run.
52. The plaintiff is thus entitled to an order of injunction in terms of prayer (a) till the disposal of the suit. Interim order granted earlier is made absolute.
53. I make it clear that the observations made herein are all tentative for the purpose of disposal of these applications and will not be binding upon the parties at the time of trial.
54. The application filed by the defendants for dismissal of the application for injunction is dismissed.
55. No costs.
56. Applications for injunction dismissed.