Punjab-Haryana High Court
Maruti Udyog Employees Union (Regd.) vs State Of Haryana on 15 December, 2000
JUDGMENT S.S. Sudhalkar, J.
1. (Order regarding interim prayer) - The pelitioners are the employees' Union and the Secretary of the Union. The employer is Maruii Udyog Limited respondent No. 4 and respondent No. 5 is Managing Director of respondent No. 4. By this writ petition, (he petitioners have prayed for various reliefs such as:
1. directing respondent No. 1 10 refer the dispute between petitioner No. 1 and respondent No. 4 for adjudication under Section 10 of the Industrial Disputes Acl (hereinafter referred to as the "Act");
2. to direct respondent No. 2 to admit the dispute in conciliation and to recommend to respondent No. I that the said dispute be referred for adjudication;
3. to direct respondent No. 1 to commence prosecu-
tion of respondents No. 6 and 7 (Note: (here are only five respondents in this case) under Section 25T of theAcl;and
4. to direct respondents No. 4 and 5 to allow the workmen of respondent No. 4 to join duty without insisting on their signing a bond of good conduct.
2. The petitioners have also prayed for interim relief for a direction to be given to respondents No. 4 and 5 (o allow all the workmen to join their duty immediately, without insisting upon signing of "Good Conduct Bond", during the pendency of this petition.
3. I have heard learned Counsel for the parties regarding interim relief.
4. The case of the petitioners is that on 6.2.1998, the management of respondent No. 4 and respondent No. 1 had entered into a settlement for a duration of four years commencing from 1.4.1996 which was to expire on 31.3.2000. New wage settlement was due by March, 2000. The workers were disappointed because of the non-implementation of the pension scheme and the incentive scheme as per the 1998 settlement. On 23.3.2000 respondent No. 1 submitted a charter of demands and assured the management of its commitment to industrial peace and sought a meeting to arrive at (he settlement without confrontation. Prom April, 2000 to July, 2000, respondent No. 4 was pre- occupied with his policy issues, such as, introduction of "ALTO" Model and on assurance that the Board of Directors would deliberate on the said demands, petitioner No. 1 had kept their agitation for a new charter of demands in abeyance. During the period June, July and August, 2000, respondent No. 4 had suspended its production of cars as the market demand had taken a sharp decline. The production was suspended in September also for the same reason.
5. It is contended that because of the persistent refusal even to consider the legitimate demands, respondent No. 1 gave its intention to go on strike. The said notice is dated 18.9.2000 and is at annexure P/3 in the petition. By the said notice, respondent No. 4 was informed that in case the demands are not met immediately, the workers may be forced to go on hunger strike, tool- down strike, fast unto death and total strike without any further notice. On September 19, 2000, the workers started their relay hunger strike at the company gate. The management suspended 9 union activists and warned petitioner No. 1 with dire consequences if it pursued with its agitation. However, the employees'Union merely resorted to a token two-hour strike per day from 3.10.2000. On October 12,2000, the management prevented the entry of the workers and directed the workers to sign a "Good Conduct Undertaking" before entering the factory. It had affixed a notice on the main gate to make it clear that no worker would be permitted entry unless he signed the said undertaking. On 17.10.2000, petitioner No. I wrote to the Labour Commissioner complaining him of the illegal action of respondent No. 4 which also amounted to an unfair labour practice. Petitioner No. 1 also asked the Labour Commissioner to immediately initiate proceedings so that the illegal lock-out which was not in the interest of either the workmen or the management was lifted.
6. It is alleged thflt workers named Shri Chander Bhan and Shri Rajesh had been permitted to enter the factory campus of respondent No. 4 and were detained since 12.10.2000 and on 18.10.2000 Bhan's dead-body was deposited at his residence by the management and Rajesh's dead-body was recovered the same day from a nullah five kilometers from the factory campus of respondent No. 4. The police has refused to register an FIR despite several requests. On October 18,2000, petitionerNo. 1 wrotealetterto the management requesting them to discuss and resolve the impasse. On October 23, 2000, petitionerNo. 1 wrote a letter to the Conciliation Officer requesting him to intervene. Pursuant to the request of petitioner No. I vide its letter dated 18.10.2000 a meeting to solve the issue was held on October 25, 2000 but no solution was found due to the adamant attitude of the management-respondent No. 4.
7. PetitionerNo. 1 filed a suit in the court of Civil Judge (Senior Division), Gurgaon being suit No. 206 of 2000 with a prayer of permanent injunction restraining respondent No. 4 from insisting the workers to sign a "Good Conduct Undertaking". The suit was filed because the Labour Commissioner had refused to intervene and the petitioner-Union was in great distress. Vide order dated 8.11.2000, the learned Civil Judge held that it had nojurisdict ion to try the suit since it was essentially an industrial dispute. (This was iheprima facie finding given by him). However, inspite of the finding regarding jurisdiction, the learned Judge proceeded to examine the matter on merit and declined to grant temporary injunction as prayed for. Petitioner-Union filed an appeal against the said order of learned Civil Judge, in the Court of District Judge, Gurgaon.. However, on 14.11.2000 both the pending suit and the appeal were withdrawn.
8. From October 11,2000 till date respondent No. 4 had terminated the services of about 84 workers who had not signed the said undertaking. This writ petition was, therefore, filed with the above mentioned prayers on 25.11.2000.
9. Respondents No. 4 and 5 have filed their written statement challenging the writ petition. In the written statement, they have inter alia taken the following preliminary objection :
(i) that respondent No. 4 is not a Sate within the meaning of Article 12 of the Constitution of India and, therefor, writ petition against it is not maintainable.
(ii) that the petitioners had earlier filed a suit forper-manent injunction in the court of Additional Civil Judge (Senior Division), Gurgaon for restraining respondent No. 4 from forcing the workers to sign the good conduct undertaking or any such like document before entering the premises. It is further contended that the learned Civil Judge found that the strikeprimafacie appeared to;be illegal and that the bond of good conduct did not change any condition of service of workmen and that the undertaking was more in the form of an assurance to do the normal work with discipline which was necessary. Learned Civil Judge had justified ihe insistence on execuiion of good conduct bond. It is contended that by this petition, the petitioner No. 1 are claiming the same and similar reliefs which they had sought from the Additional Civil Judge (Senior Division), Gur-gaon. Therefore, when the application under order 39 rules 1 and 2 Civil Procedure Code (hereinafter referred to as the "Code") was dismissed by the learned Additional Civil Judge, it was not open to petitioner No. 1 to file the present writ petition when the suit was withdrawn without obtaining permission to file a fresh one on the same cause of action.
(iii) In the endeavour to bring the reliefs which the petitioners are claiming against respondents No. 4 and 5 within the jurisdiction of this Court, the petitioners have joined reliefs against the official respondent Nos. 1 to 3 and have tried to show that by doing so a writ petition can lie against respondents No. 4 and 5.
10. On merit also, the allegations made in the petition are denied. It is inter alia contended that during the "go slow" resorted by the workmen, not only there was a production loss but also the workmen had raised slogans and held demonstrations in the factory premises. It is also contended that at the instigation of the Union, a large number of workmen forced their entry into the factory without any authorisation on 19.9.0200. They collected in huge numbers in front of the Mezzanine 1 and 2, held demonstrations and raised offensive and derogatory slogans. On 20.9.2000 the workers in large number held demonstration and also damaged property. Not only the workers did not work but they also stopped the contract labour from entering the factory on 21.9.2000 and 22.9.2000. On 26.9.2000 and 27.9.2000, the workmen reported for duty without wearing their uniform which conduct of theirs not only constituted a serious misconduct but also is a security risk, as in the absence of uniform any outsider with mischievous motives could also gain entry into the factory. In order to ensure that no such unauthorised person entered into the factory the management directed the security staff on duty to allow the entry of the employees only after checking and verifyingthe identity cardof the employees. However, the workmen forced their entry i"10 the factory by pushing the security guard on the gate, thereby exposing the plant and machinery to damage and sabotage. On 28.9.2000, the workmen did report for duty in uniform but they had stickers "Inquilab Zindabad" on their uniform. It is contended that because of the above activity of the workmen, in order to see that the damage was not caused, the bond of'Good Conduct' is necessary. It is contended in the written statement that because of the notice regarding the un- dertaking, the workmen are not prevented from joining the duty nor as the management demanding from the workmen to sign any "Good Conduct Bond". It is contended that in terms of Ihe contract of employment and the certified standing orders and the code of conduct agreed to vide settlement dated 27.7.1987, the workmen are duty-bound to adhere to the norms of discipline and give normal out-put. It is further contended that the certified Standing Orders which have the force of law, clearly prohibit the employees from indulging in nefarious, illegal acts.
11. In pursuance to the notice dated 11.10.2000, about 1200 workmen had joined their duties after signing the "Good Conduct Undertaking". However, the petitioner-Union is instigating the other workmen not to sign the undertaking. It is further contended that the letter dated 18.9.2000 is not actually notice of strike and it means that the line of action was yet to be decided as the petitioners had indicated various options which include hunger strike, tool down strike, fast unto death and total strike. It is contended that the letter being termed as notice of strike is an after-thought and is not a strike notice as contemplated under the Standing Orders requiring the petitioners to give 14 days notice before striking work.
12. Regarding death of the two workmen, it is contended in the written statement that it is denied that Shri Chander Bhan and Shri Rajesh had been detained in the factory from 12.10.2000. Shri Chander Bhan was an old heart patient and unfortunately he died as a result of the heart attack suffered by him while on duty and that petitioner No. 1 had exploited the death of Chander Bhan to its advantage by raising all kinds of false accusations against the Managing Director accusing him of committing murder. So far as Rajesh is concerned, it is contended that his body was recovered at a distance of about 10 kilometres from the factory and the circumstances leading to his death are nol known.
13. Amongst pleadings of the parties mentioned above, I have mentioned only those pleadings which are relevant to the order regarding interim injunction.
14. Regarding the first objection Mr. Sarin, learned senior Counsel for respondent No. 4 has argued that respondent No. 4 is not a State and, therefore, writ will not lie against it. He has contended that the only prayer against respondents No. 4 and 5 is Ihe one which are prayers (e) and (f). They are reproduced as under :-
(e) A writ of mandamus or any other appropriate writ or order or direction in the nature of a writ of mandamus directing the respondent No. 4 and 5 to cease and desist from committing the said unfair labour practice and to allow the workmen of respondent No. 4 to report for duty without insisting that they should sign a good conduct bond may kindly be issued.
(f) Ad interim and exparte orders in terms of prayer (e) may kindly be issued.
15. Mr. Sarin has argued that no other prayer is against respondents No. 4 and 5 and, therefore, for the oilier prayers made in the writ petition, no writ can lie against respondents No. 4 and 5.
16. The other prayers are qua the other respondents. Mr. Sarin had relied on a judgment of a Division Bench of this court in which I was also a member. It is case of Ganesh Dutt and others v. The Sfate of Hary-ana and others. In that case respondent No. 4 was Maruti Udyog Limited through its Genera! Manager. The prayer in the said writ petition was for prohibiting Maruti Udyog Limited from employing any other workmen without offering employment to them as they have already been in continuous service of the Company for a period of one year and have alsq completed 240 days. It was held in the said judgment that Maruti Udyog Limited is not an instrumentality of the State. The Division Bench had relied on a judgment of the Delhi High Court in the case of P.B. Ghayalodv. Maruti Udyog Limited and another, Civil Writ Petition No. 3~102 of 1990. It was observed by the Delhi High Court in that case that the Maruti Udyog Limited is not an instrumentality of the Government within the ambit of Article 12 ofthe Constitution of India and relied on the views ofthe Kerala High Court in the case of K.M. Thomas v. Cochin Refineries Ltd, and others, AIR 1982 Kenila 248. It was observed by the Division Bench of this Court in the case of Ganesh Dutt (supra) that against the order of the Delhi High Court an SUP was filed in the Supreme Court and their Lordships of the Supreme Court vide order dated December 6, 1991 declined to interfere and dismissed the SLP. Mr. Sarin argued that is now well established that Maruti Udyog Limited is not an instrumentality ofthe State end, therefore, writ will not lie against it.
17. Mr. Sarin has also referred to the case of Sri Ramdas Motor Transport Ltd. v. TadiAdhlnarayana Reddy and others, 1997(5) Supreme Court Cases 446. It is regarding alternative remedy available under the Companies Act.
18. Mrs. IndraJaiSinghJearnedCounselforthepe-titioners contended that she does not say that Maruli Udyog Limited is an instrumentality of the State. However, writ against Maruti Udyog Limited is maintainable. She has relied on the case of U.P. State Cooperative Land Development Bank Ltd. v. Chandra Blian Duhey and others, AIR 1999 SC 753:1999(1) SCT 593 (SC) (hereinafter referred to as the case of "Chandra Bhan Dubey") in which it has been observed as under:
".....When the language of Article 226 is clear, we cannot put shackles on the High Court to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him be that wrong be done by the State, an instrumentality ofthe State, a company or a co-operative society or association or body of individuals whether incorporated or not, or even an individual. Right that is in-
fringed may be under Part III ofthe Constitution or any other right which the law validly made might confer upon him. But under Article 226 of the Constitution is so vast, this court has laid down certain guidelines and self-imposed limitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed to by pass the normal channel of civil and criminal litigation. High Court does not act like a proverbial'bull in china shop1 in the exercise of its jurisdiction under Article 226."
19. In the above said case, the Supreme Court ultimately held that the appellant in that case i.e. U.P. State Co-operative Land Development Bank Ltd. was an authority controlled by the Slate Government and the service conditions ofthe employees ofthe appellant particularly with regard to disciplinary proceedings against them arc statutory in nature and thus writ petition was maintainable against the appellant. It has observed that to the above extent, they agreed with the High Court. However, disciplinary proceedings were held against the respondents in accordance with law with due observance ofthe rules of natural justice and the judgment ofthe High Court was, therefore, riot correct to that extent and hence the appeals were allowed.
20. The second objection raised by Mr. Sarin is that once the suit being withdrawn without permission to file fresh suit on the same cause of action, fresh suit is barred and even the writ petition is barred. He has argued that Order 23 Rule 1 of the Code then comes into play and if the petitioners wanted to have their right open, they could have asked for permission to file the fresh siiil on the same cause of action and if such application was given, respondent No. 4 could have had an opportunity of raising objection to such an application and therefore, withdrawal ofthe suit has barred the fresh suit and even this writ petition. Mrs. Indra Jai Singh has argued that the suit was withoutjurisdiction and, therefore, does not bar this writ petition. Mr. Sarin pointed out from the order of (he civil Court that the suit is not held to be without jurisdiction and only while deciding the question of granting ad interim injunction it is only a primafacie opinion expressed by learned Civil Judge that it had no jurisdiction and suit is not dismissed because of want of jurisdiction. The copy of the judgment ofthe Civil Judge is at annexure R/2. In para 7 of the said judgment, the Civil Judge has observed as under:
"The dispute in hand in the present case between the parties is, thus\primafacie, essentially an industrial dispute within the ambit and scope of section 2(k) of Ihe Industrial Disputes Act, 1947 and the Civil Court \\-QM\tiprimafacie, have no jurisdiction to try this suit."
21. Mr. Sarin has relied on the case of Snrgtija Transport Service v. State Transport Appellate Tri-
hunal, Gwalior and others, AIR 1987S.C. SS. In that case it has been held by the Supreme Court that while the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar oilier remedies I ike a suit or a petition under Article 32 since such withdrawal does not amount to resjttdi-cata, the remedy under Articles 226 should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ.
22. Mr. Sarin, learned Counsel for respondent No. 4 has cited the case of Teja Singlt v. Union Territory of Chandigarh, 1982 Punjab Law Reporter 160. Il is a judgment of a Full Bench of this Court. In that case it has been held that when a writ petition is dismissed after contest by passing a speaking order, then such decision would operate as res judit-'ata in any other proceeding such as suit or petition under Articles 32 of the Constitution.
23. Mr. Sarin has also cited the case of S.K. Miltalv. The Slate of Haryana and others, 1997(1) Current Law Journal 581:1996(4) SCT219 (P&H)(DB). It is a judgment of a Division Bench of this court wherein it has been held that once a person initiates proceedings in Civil Court, subsequently he cannot take the plea that the remedy by way of civil suit is not effective.
24. Mr. Sarin further argued that the relief claimed against respondent No. 4 is under Clause (e) of the relief clause of the petition and if this relief can not be granted, the interim relief also cannot be granted. He has relied on (be case of Surjii and others v. Copland others, 1970 Current Lit\v Journal IS8. In para 6 of the judgment, it has been observed that in a suit brought for a declaration that the plaintiff had a right to remain in possession of the suit lands as long as he performed "archakathvam" service and that he could not be evicted from those lands, no injunction would be grantee! to the plaintiff to restrain the defendants from taking proceedings to recover possession of the lands in dispute.
25. Mrs. Indra Jai Singh relied on the case ofRajas-tliaii State Road Transport Corporation and another v. Krishna Kant ami others, 1995(5) Supreme Court Cases 75 : 1994(1) SCT 23 (SC) in which it is held that the dispute involving recognition, observance or enforcement of rights and obligations created under the Act or its sister enactments, if amounts to industrial dispute, shall be adjudicated by the forum created under the Act only. Rely ing en this judgment, she argued that the Civil Court had no jurisdiction and, therefore, the writ petition was not barred by withdrawal of the Civil Court. Mr. Sarin, however, relied on the observations in the very judgment that when industrial dispute involves relief based on general law, the Civil Courts have alternate jurisdiction. He also laid stress on the observations in the case [hat remedies provided under the Act cannot be said to be no! equally effective. In the present case it can be seen that before the question of jurisdiction could be finally decided, the suit was withdrawn.
26. I shall take up all the preliminary objections together. So far as the question of amenabil ity to the writ petition is concerned, as mentioned above, contrary judgments have been cited. The case of Ganesh Dull (supra) and other cases referred to therein have decided on the question regarding amenability to the writ jurisdiction, respondent being not an instrumentality of the State. As mentioned above, counsel for the petitioners has made it clear that she does not say that Maruti Udyog Limited is an instrumentality of the State. However, according to her this writ petition is maintainable. In the case of Chandra Bhan Dubey (supra) cited by her, it is made clear that the High Court will step in to undo a wrong and the power conferred under Article 226 of the Constitution is vast. However, it has also been observed in the said case that the court has laid down certain guidelines and self-imposed limitations subject to which High Courts would exercise jurisdiction. Though those limitations and guidelines cannot be mandatory in all circumstances, it has been held that the High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce aright. It is also observed that a party may not be allowed to bypass ihe normal channel of civil and criminal litigation. It may also be noted that in the said case the U.P. State Co-operative Land Development Bank was held to be an authority controlled by the State Government and the service conditions of the employees of the appellant particularly with regard to disciplinary proceedings against them being statutory in nature and thus writ petition was held maintainable against it. It was further held by the Supreme Court that the disciplinary proceedings were held against the respondents in accordance with law with due observance of the rules of natural justice and. therefore, the judgment of the High Court was not correct to that extent and hence ihe appeals were allowed. Therefore, it is clear that the guidelines cannot be held to be mandatory in all circumstances. In the case of Sri Ramdas Motor Transport Ltd. (supra) it was observed that instead of moving the authorities prescribed under the Companies Act the first respondent had chosen to resort to the writ jurisdiction of the High Court for a direction to have the affairs of the company investigated by the CBI. It was held that a shareholder cannot be allowed to bypass the express provision of the Companies Act and move the High Court under Article 226 of the Constitution and that he has very effective remedies under the Companies Act for prevention of oppression and mismanagement and when such remedies are available, the Court should not readily entertain a petition under Article 226 of the Constitution.
27. Moreover, the time when the petitioners have come for seeking the remedy under Article 226 of the Constitution is also important. They have come after getting an adverse order in application for injunction from the Civil Court and after withdrawal of the suit without permission to file a fresh one. When alternative remedy is available in this case,and it is not the case that the petilioners have rushed to this court at ihe first instance, I find that the petitioners could not have invoked the writ jurisdiction of this Court. I shall deal on Ihe effect of trie withdrawal of the suit in the subsequent part of this judgment. However, the effect of the previous steps taken by the petitioners goes to show that there can be possibility of Bench- hunting. Learned counsel for the petitioners argued that when the civil court held that it had no jurisdiction, it should not have gone into merit of the case. However, it can be found from the order of the civil Court that the findings of the civil Court are only prima facie findings and Ihe civil Court has not given the finding regarding jurisdiction and, therefore, when the question of injunction was to be decided, Ihe civil Court cannot be blamed for having entered into the discussion on the merits of ihe case as well. Therefore, in addition to the point of entertaining of the writ petition under article 226 of the Constitution against Maruti Udyog Limited, the conduct of the petitioners has also to be taken into account and after having laken the same into account, ihe guide-lines and self-imposed limitations, as men-lioned by the Supreme Court in the case of Chandra Bhan Dubey (supra), cannot be over-looked. Therefore, I find that the writ pelition against respondents No. 4 and 5 will not lie for the prayer the petitioners are making against it. II may also be noted that there are five respondents in all and prayers at serial Nos. (e) and (f) are restricted to respondents No. 4 and 5 only. The prayer is separable from the prayer against other respondents and considering all the above aspects, it is found that the other respondenls have been included with prayer against them in this writ petition just to make the writ petition maintainable against respondents No. 4 and 5.
28. The case of Sarguja Transport Service (supra) was the case in which the earlier writ petit ion by the petitioner was withdrawn. It was a simple order passed:
"Shri Y.S. Dharmadhikari, learned Counsel for the petitioner seeks permission to withdraw the petition. Heispermittedtodoso. Thepetitionisdis-missed as withdrawn."
29. In lhat case later on the petitioner again filed another writ petilion before the High Court and when it came up for hearing, it was held that no second writ petition could lie against the same order in view of the withdrawal of the earlier writ petition and that earlier writ pelilion was not withdrawn with permission to file a fresh petition. These observations were made in addition to Ihe observations on the merit of the case. The Supreme Court further observed in that case that the provisions of Order 23 Rule 1 of Ihe Code should be extended in the interest of administration of justice to cases of withdrawal of writ petition also, not on the ground ofresjudicata but on the ground of public policy. It is also observed that it would also discourage the litigant from indulging in Bench-hunting taclics. It is further observed that in any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again and while the withdrawal of a writ petilion filed in High Court without permission to file afresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution since such withdrawal does not amount to resjudicata, the remedy under Article 226 of the Constitution should be deemed to have been abandoned by (he petitioner in respect of the same cause of action. Counsel for the petilioners on the other hand argued that when a writ petilion is withdrawn, the second writ petition may not lie but when a suit is withdrawn, the High Court's power to entertain the writ petition cannot be said to be barred. I do not agree with ihe submission of learned Counsel for ihe petitioners. The crux of the matter is that a writ petition is barred in such circumstances (though the other remedies are kept open). It does not mean that when the suit is withdrawn, a writ petition will lie though the second suit will not lie. Moreover, the Full Bench judgment of this court in the case of Teja Singh (supra) also laid down that provisions of Order 23 Rule 1 of the code would apply to the writ proceedings and that a petition which has simply been got dismissed as withdrawn would be a bar to the filing of a second petition on the same facts and in respect of the same cause of action, though it is held that Ihe petition dismissed only on the ground of laches or availability of an alternative remedy would not operate as resjudicata.
30. In the case of S.K. Mittal (supra), a Division Bench of this court has held that once a person initiales proceedings in Civil Court, subsequently he cannot take the plea that the remedy by way of a civil suit is not an effective one. It was further held that it would be proper exercise of discretion not to entertain a petition by a person who had approached the civil Court and had subsequently withdrawn the suit. It has been further held therein that if a party approaching the High Court for issue of a writ can get similar relief by filing appeal, revision or civil suit, the extraordinary jurisdiction should not be exercised by the High Conn. It is also observed therein lhat the High Court will not convert itself into a substitute of ihe civil Courts and various statutory adjudicating bodies and in a given case a person aggrieved by the action of the State or its agencies may avail the remedy of civil suit thinking that he will be able to get effective relief from the competent civil Court. Such person may also apply for grant of temporary injunction for proteclion of his rights. Once this course is adopted, it is not permissible for that person to give up the remedy of civil suit and approach the High Court merely because at a subsequent point of time he thinks that the proceedings in the civil Court will last longer than the period which would be consumed in the decision of a writ filed for seeking similar relief. It is further held that once a person has chosen to seek remedy in a civil Court, he cannot turn around subsequently and say that the remedy by way of civil suit is not effective. It is further observed that at times an attempt is made to seek order of temporary injunction from the High Court after the civil Court has declined similar relief and that in some cases where order of temporary injunction passed on an application filed along with the civil suit, the plaintiff feels lhat such an order will not be sustained by the appellate Court and, therefore, he/she seeks withdrawal of ihe suit and then files writ in the High Court. It was observed that such a practice cannot in any manner be commended and rather it deserves to be depreciated (deprecated ?) because it gives rise to an impression to the litigating public that if one cannot get temporary injunction from a civil Court in an application filed under order 39 Rules 1 and 2 read with section 151 C.P.C., then an attempt could be made to get such relief from the High Court in exercise of its jurisdiction under Article 226 of the Constitution. It is further observed in it that the High Court will not exercise its jurisdiction under Article 226 of the Constitution in such a case.
31. Counsel for the petitioners has relied on the judgment of Olga Tellis and others v. Bombay Municipal Corporation anil others, AIR 1986 Supreme Court ISO- She has relied on para 27 of that judgment. The facts of that case are that a writ petition was filed on the original side of the Bombay High Court by and on behalf of ihe pavement dwellers claiming reliefs similar to those claimed in Ihe batch of writ petitions. The learned Single Judge granted an ad interim injunction restraining Ihe respondents from demolishing (he huls and from evicting the pavement dwellers. When the petition came up for hewing, counsel for the petitioners made a statement in answer to a query from the court, that no fundamental right could be claimed to put up dwellings on foot-paths or public roads. Consequently, a written undertaking was given by the petitioners agreeing, inter alia, to vacate the huts on or before October 15, 1981 and not to obstruct the public authorities from demolishing them. In view of this undertaking, the Stale counsel responded to the petitioner's undertaking by giving an undertaking on behalf of the State Government lhat until October 15, 1981, no pavement dweller will be removed out of the city against his wish. On the basis of these undertakings, the learned Judge disposed of the writ petition without passing any further orders. The contention of the Bombay Municipal Corporation in the subsequent petitions was that since the pavement dwellers had conceded in the High Court that they didnot claim any fundamental right to pul up huts on pavements or public roads and since they had given an undertaking to the High Court that they will not obstruct the demolition of the huts after October 15, 1981, they were estopped from contending in that court that the huts constructed by them on the pavements could not be demolished because of their right lo livelihood which is comprehended within the fundamental right to life guaranteed by Articlc2t of the Constitution. It has been held by Ihe Supreme Court in that case that inspite of the undertaking given, the petitioners were entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights and that how far Ihe argument regarding the existence and scope of the right claimed by the petitioners is well founded was another matter. According lo counsel for the petitioners, (he fundamental rights of the workmen are being affected and, therefore, the withdrawal of ihe suit cannot estop them from filing the writ petition.
32. The case of Olaga Tellis (supra) was on a different footing. It was regarding the undertaking given at one slage in one writ petition which was held to be not binding in the subsequent writ petition. In view of the above mentioned facts of the present case, these principles cannot be applied to this case.
33. This then takes me again to the third objection raised by learned Counsel for respondent No. 4 i.e. the two reliefs which are separate in nalure are joined together because in the relief clause, except those in relief clauses (3) and (f), the writ might lie against respondents No. 1 to 3 and when writ could not lie against respondent No. 4, the petitioners have tried to mix up these reliefs and seek the relief which cannot be a subject-matter of a writ against respondent No. 4 and a relief which was once abandoned is tried to be revived by joining il with other reliefs. It is found that the relief Clauses (e) and (0 are against respondents No. 4 and 5 only. The other reliefs claimed are mainly against respondents No. 1 to 3. However, in the present case il is clear lhal because injunction was not granted in the Civil Court this device has been adopted to bring the case within ihe writ jurisdiction of this court for the grant of the relief which was declined by Ihe civil Court. From this also it can be found that the petitioners should not be granted relief of injunction as prayed for. At this stage it may again be mentioned that the suit was withdrawn without a prayer under Order 23 of the Code for permission to file fresh suit. Suit was not dismissed on the point of jurisdiction. The appeal filed over the order of the learned Civil Judge was also withdrawn and in such a case it will neither be proper nor will it be prudent to grant injunction as prayed for.
34. On merit, it was argued by learned Counsel for the petitioners that if there is a legal strike, the condi-(ions as mentioned in the undertaking cannot be imposed for joining duly. She has relied on seclion 25-T of the Act. Il mentions (hat no employer or workmen or a trade union shall commit any unfair labour practice. Section 2(ra) defines "unfair labour practice" to mean any of the practice specified in the Fifth Schedule. Item No. 8 in the Fifth Schedule is as under:
"Toinsisiupon individual workmen, who are on a legal strike to sign a good conduct bond, as a precondition to allowing (hem to resume work."
35. According to learned Counsel for the petitioner, if the workmen are on legal strike, they cannot be, in view of the above provision, made to sign a good conduct bond as a pre-condition for allowing them to resume work. Mr. Sarin argued that whether the strike is legal or not is a matter of fact to be decided by the Labour Court for which evidence is required and that cannot be gone into ii 'he writ petition.
36. The undertaking which respondent No. 4 re-
quires the petitioners to sign is as under:
"Maruti Udyog Limited (Good Conduct Undertaking) I _________ son of _____________________Staff No. _________do hereby givelhisdecla-ralion of good conduct undertaking binding myself that upon joining my duties, I shall neither indulge in go slow nor resort to (ool down or stay in strike or otherwise indulge in any other activities in breach of the Certified Standing Orders which has the effect of adversely affecting the production and discipline. I further undertake to give normal output and work in disciplined manner.
I fully understand thai acting in breach of the good conduct undertaking as aforesaid shall constitute ross misconduct on my part and as such if I am found indulging in any activity in breach of this declaration of Good Conduct Undertaking, the management shall have legal right to take appropriate legal action against me.
Date ________, Signature _____________ (Good Conduct Undertaking)
Name __________________________ Deptt. _____________________ Staff No. __________________ Level _____________________Signature of Management Representative _____ This form will be accepted at all MUL gates."
37. Mr. Sarin argued that the letter dated 1S.9.2000 annexure P/3 cannot be interpreted as notice of strike. He has argued that the line of action was yet to be decided and (he petitioners had indicated various actions which included hunger strike, tool-down strike, fast unto death and total strike etc. and that the letter being termed as a notice is an after-thought and is not a strike notice. It is contended that the Standing Orders require the petitioner-Union to give 14 days notice before going on strike. In the written statement, respondents No. 4 and 5 have reproduced the last paragraph of the notice of strike date 11.4.1995 which is as under :-
"If the management failed to accede to the demand of the employees before 24.4.1995, the Working Committee of MUEU has resolved to go for strike w.e.f. 25.4.1995. This notice is in accordance with ihe provisions of the Standing Orders for workmen in MUL and as per the provisions of the Industrial Disputes Act, 1947."
38. Learned counsel for the respondent No. 4 argued that no such dite from which the strike is to start has been mentioned in letter annexure P/3 and, therefore, it cannot be treated as notice of strike. He argued that the management only wants to ascenain that no untoward incident takes place in the premises and the workers are not debarred from entering into the factory premises and that the undertaking is required to see that no untoward incident happens. He further argued that the so-called notice of strike is against the Standing Orders, which were observed by the workmen in the earlier notice of 11.4-1995.
39. Learned counsel for the petitioners further argued that Section 23 of the Act will be the section applicable to this case and under this section, no notice is required for going on strike. She further states that no conciliation proceedings are pending and 14 days no-lice is given and, therefore, strike is not illegal. She further argued that from 18.9.2000 to 13.10.2000 the workers were not on strike. Moreover according to her there is a lock-out by the management.
40. Learned counsel forthe petitioners hasalso argued regarding the necessity of strike etc. She has cited the case of B.R. Singh anil others etc. etc. v. Union of India and others, AIR (sic) Supreme Court I. She has relied on para 16 of the judgment. The portion relied upon by her is as under :-
".....Therefore, trade unions with sufficient membership strength are able to bargain more effectively witn the managements. This bargaining power would be considerably reduced if it is not permitted to demonstrate. Strike in a given situation is only a form of demonstration. There are different modes of demonstrations e.g. go-slow, sit in, work-to-rule absenteeism etc7 and strike is one such mode of demonstration by workers for their rights. The right to demonstrate and. therefore, the right to strike is an important weapon in the armoury of the workers. This right has been recognised by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers. But the right (o strike is not absolute under our industrial jurisprudence and restrictions have been placed on it."
41. Learned counsel for the petitioners has referred to the case of Vamait Marat)' G/tarat and others v. M. P. Apie and others, 1989(1) LLJ134 (Bombay). It has been held therein that when after the LabourCourt declared Ihe strike to be illegal, the employees wanted to return to work. The employer insisting on each workman giving a written undertaking. Some employees refused to give such as undertaking. The undertaking demanded of workers insisted on the workers making two confessions (i) that the strike was illegal, and (ii) that after entering the factory they would not damage the property. By making the first confession the employee would have been prevented from agitating about the correctness of the finding of the Labour Court in the earlier proceedings and the insistence on the second part of the undertaking was also objectionable and if there was material on record, may be on the basis of the present law, the employer may be justified in asking for an undertaking of this type but in the instant case, there was no material at all in the record. It has been held that the refusal of the respondent to give work to the petitioners without any undertaking would amount to a lock-out which, not being in accordance with law, would le an iltegal lock-out. However, in the present case there is no confession asked for. There is also allegation of violence which cannot be decided in this writ petition as it requires evi-
dence to be led and appreciated.
42. Learned counsel for the petitioners has also relied on the case of Vaman Maruty Gharal and others v. M.S. Apte and others, 1995(70) F.L.R. 30. In the said case, it has been held by the Bombay High Court that the insistence by company on admission by workmen that the strike was illegal as a condition precedent, to their being allowed to resume their duty was held to be illegal and improper. In the present case, no such admissioi, is asked for.
43 Learned counsel forthe petitioners has referred toannexure R/7 dated 11.10.2000 which is a notice by the management. She has relied on para 11 ofthesame wherein it is mentioned that the management merely wants the workmen to give an undertaking that they shall, upon joining their duties, give normal output and adhere to the norms of discipline. She has relied on the case of The Statesman Ltd. v. Their Workmen, AIR 1976 Supreme Court 758. She lias read over paras 15 and 16 of the judgment, l! was held therein that going by Ihe Tribunal's reading of (he situation there was a strike that day. The pendency of certain types of proceedings before a Tribunal stamp a strike or lock-out with illegality and while section 23 prohibits strikes and lock-outs when proceedings mentioned there are under way, section 24(3) absolves a lock-out of illegality if it is caused by an illegal strike. It has been further observed thai there surely was a pending industrial dispute when the Unions sprang the strike. Being, therefore, illegal, the lock-out that followed became a legal, defensive measure. However, it has been held that the management cannot behave unreasonably merely because the tock-out is born lawfully. If by subsequent conduct, imaginatively interpreted, the Unions have shown readiness to resume work peacefully, the refusal to re-start the industry is not right and the initial legitimacy of the lock-out loses its virtue by this blemished sequel. It has been further held that "in this hungry world the weaker many cannot afford the luxury of tinery in speech which the happier few can afford." The learned Counsel has argued that the Union is ready to resume work and there was stoppage of work for two hours a day from 2.10.2000 to 12.10.2000. She has referred to para 6.17 of the written statement on page 237 of the paper book which shows thai as to how the tool-down strike on 3-10.2000 was. It is as under:
6.17 effeclive 3.10.2000 the workmen have also resorted to tool-down strike, the details of which arc given as below :-
3.10,2000
-2 hours in "A" and General shift 4.10.2000
-2 hours in "A", "B"
and general shift 5.10.1000
-4 hours in "A', shift and 2 hours each in general and 'B' shifts.
6.10.2000
-Total tool down strike in 'A' and '&' shifts and 2 tours in General shift 9.10.2000
-2 hours in 'A' 'B' and General shift.
10.10.2000
-2 hours in 'A' 'B' and General shift.
11.10.2000
-2 hours in 'A' 'B' and General shift.
43. Learned counsel for the petitioners has referred to annexure dated 12.10.2000 in which the petitioner-Union has requested the management to allow the workers to join duty. She has argued that there was no notice of lock-out but in law there is a lock-out when the workers are not allowed to work without undertak-ing. She has also argued that the lock-out can be a partial one in view of the section 2(1) of the Act. She has relied on the case of Harish Chander and others v. Kurukshetra University, Kurtikshetra and another, 1989(2) RecentServices Judgments 367. It is a judgment of the Single Judge of this Court in which it has been held that the grant of service benefit to some of the workmen on account of not going on trike and on their undertaking not to go on strike in future and if they would, the benefit would be withdrawn, amounts to unfair labour practice. However, in the present case, it is not a question of benefit that has to be given on not going on strike and the undertaking is not for the same and, therefore, this judgment does not help the petitioners.
45. Learned counsel for Ihe petitioners argued that it is only because respondents No, 1 to 3 have failed to do their duty, the petilioners have come to this court. She has referred to a statement made by Mr. Manohar Joshi, Hon'ble Minister of Heavy Industries and Public Enterprises on 29.11.2000. A copy of the same has been shown by her. It has been mentioned in his statement as under :-
"However, Government did not consider it appropriate to insist that each worker executes a Good Conduct Undertaking. Such an undertaking is not in consonance with the spirit of collective bargaining. Government had therefore proposed that unions may furnish an assurance to the management that the employees will abide by the extant Standing Orders of the Company."
46. Learned counsel for the petitioners argued that the workers are ready to give the undertaking as directed by the Hon'ble Minister. This suggestion is not accepted by the counsel for respondent No. 4.
47. Mr. Sarin argued that the disputed questions cannot be gone into in this writ petition and the authority under the Industrial Disputes Act is the proper authority.
48. Mr. Sarin has referred to the case of Glaxo Labo ratories Employees Union and M/s. Glaxo India Limited, 1996(3) Labour Law Reporter 266 : 1996(4) SCT 5I4 (Gujarat). In that case the undertaking was sought for in the following form :
"I___________________Employee No. ___________hereby seek permission to enter the factory premises as I am not on strike and I undertake that during my shift I will not go on strike. 1 will ensure normal output by per forming my assigned duties and I will maintain discipline. I accept lhat in case I fail to abide by my above undertaking, I will render myself liable to action being taken against me.
Signature"
48. It was held in that case that on scrutinizing of this undertaking, it was clear that there is no change of any condition of service of the workmen. The undertaking was more in form of an assurance to do the normal work with discipline which was necessary having regard to the prevalent situation. It is also observed that it is not a condition of service of a workman to force his entry in the factory premises, when on strike and the workmen enter the premises because of the implied licence and such permission of the employer to enter the factory premises cannot be described as change in conditions of service within the meaning of section 9A of the Act. In that case a settlement was arrived at between the parties which ended on June 30, 1990 when new demands were raised by the Union including demand for 2 days weekly off know as 6 x 2 shift system or rota system. There were negotiations between the parties on this issue, but it could not be resolved. In the meeting of the General Body of the Union held on September 27, 1991, it was resolved to resort to agitation including indefinite strike to press for their demand for 6 x 2 shift system. This stand was reiterated by the Union in their letter dated October 15, 1991. On Novembers, 1991 the respondent-Company wrote a letter to the Union drawing its attention to the deterioration in the discipline of the workmen and pointing out that their insistence on flash strikes will adversely affect the operations of the company. According to the Company, the irresponsible conduct of the workmen created safely hazards to the plaint and personnel. According to the company, from October 8, 1991 to December 7, 1991, there were 14 instances of flash strike, go-slow, slogan shouting etc. on different dates. The Company approached the civil Court to obtain orders against the workmen for restraining them from using force executing threats and using abusive language. Ultimately, on December 8, 1991 the respondent-Company sought an undertaking from each workman at the beginning of each shift to the effect that during the shift, the workmen would not go on strike and will ensure normal output by performing the assigned duties and will maintain discipline. The workmen refused to sign the said undertaking. On January 11,1992 the Union wrote a letter to the Com-parv seeking withdrawal of the requirement of undertaking. Ultimately on April 7. 1991, the Union agreed to drop its demand for 6 x 2 shift system and consider the Company's offer for subsidised transport. The demand for 6 x 2 system was dropped by the Union on April 23, 1992. It was agreed to withdraw the agitation and gave an undertaking on behalf of the workmen that they would resume work and will not re-scrt to slrike and further that they will ensure normal out-(sic) and maintain discipline. Thus with effect from April.24,1992, the work was resumed. According to the company, the workmen were on illegal and unjustified strike from December 9, 1991 to December 23, 1992 but according to the Union, this was an illegal lock-out by the Company.
50. Mr. Sarin also referred to the judgment in the case of Sundaram Industries Employees Union v.
Management of Sundaram Industries Ltd., 2000(2) LLJ (sic). It is held in that case that the respondent-management was charged with having refused to employ the workmen until they signed a bond of good conduct and declaration that the impugned action of the management was illegal. The High Court dismissed the petition, observing that the demand of the management could not be tested unless the factual situation was established in proper forum. It was held that it was neither a case of temporary closure of business, nor of suspension of work and whether the impugned refusal of the respondent-management would or would not amount to lock-out had to be decided in a proper forum.
51. Mr. Sarin has also argued if a relief cannot be granted in the final decision of the case it cannot be granted at the initial stage also. He has relied on the case of Bank of Maharashtra v. Race Shipping and Transport Co. Pvt. Limited and another, JT 1995(3) S.C. 175. It has been held therein that time and again the court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience.
52. Mr. Sarin has cited the case of P.R. Sinha and others v. Inder Krishan Raina and others, 1996(1) Supreme Court Cases 681. It has been held therein that the High Court should not pass interim order, the nature of which is to grant a relief which can be granted only at the final disposal of such a writ petition. In that case the writ petition filed by respondent complaining non-supply of coat by appellant in spite of deposit of price of coal. The appellant has contended that Income Tax Deptt. had attached the money deposited by respondent. In the High Court while admitting the petition issued ex parte ad interim order directing the appellant to release, in the meantime, the coal for which it received payment from respondent. It was held in that case that the High Court erred in issuing such an order.
53. The petitioner who seeks injunction has to show the following three points to be in his favour :-
(i) that he has a prima facie case;
(ii) that the balance of convenience is in his favour: and
(iii) that irreparable loss will be caused to him if such an injunction is not granted.
54. In this case, the petitioners cannot be said to have prima facie case in view or the discussion made above. Balance of convenience also cannot be said to be in their favour. The loss, if injunction is not granted, cannot be said to be an irreparable one. What respondent No. 4 is wanting is to sign and "undertaking" in order to see that no untoward incident takes place. When there is allegation of violation in the factory premises it cannot be over-looked. If the petitioners are not on strike, then they can be allowed to enter the factory but at the same time there should not be any agitation, speeches or any violence in the factory premises. Moreover, if the workmen are on strike, the question to enter the factory does not arise. Mr. Sarin has argued that whether the strike is legal or not will have to be seen after consideration of the evidence which cannot be done by the writ court. He has argued that the notice of strike as staled by the petitioners, is not a notice of strike at all. On the contrary, according to him notice indicates that the nature of the strike or mode of strike is still to be decided and, therefore, it cannot be said to be notice of strike. I find great force in this argument. This being so, prima facie it cannot be said that it was a notice of strike.
55. This case can also be seen from another angle so far as interim order is concerned. What respondent No. 4 is wanting is the "undertaking" mentioned above. The petitioners are ready to give undertaking as mentioned in the letter of Hon'ble Minister of Heavy Industries and Public Enterprises dated 29.11,2000. If the undertaking can be given as suggested by Hon'ble Minister, the undertaking as asked by respondent No. 4 also can be given at this interim stage. Of course, even if the undertaking as wanted by respondent No. 4 is given at this stage, it shall be deemed to be an interim arrangement subject to the final decision of this writ petition and if the petitioners succeeded, the undertaking can be said to be non-existent.
56. In view of the above, reasons, 1 do not find it proper to grant ad inter injunction as prayed for. Accordingly, the prayer for interim relief is rejected.
57. Order accordingly.