Calcutta High Court (Appellete Side)
Food Corporation Of India Workers' ... vs The Registrar Of Trade Unions & Ors on 12 July, 2013
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
Form No.J(2) IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
C.O. No. 1558 of 2013
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Food Corporation of India Workers' Union.
Versus
The Registrar of Trade Unions & ors.
For the petitioner: Mr. Shaktinath Mukherjee,
Mr. Partha Sarathi Sengupta,
Mr. Probal Kumar Mukherjee.
For the opposite parties: Mr. S.P. Roy Chowdhury,
Mr. S.P. Mukherjee.
Heard On: 11.06.2013, 13.06.2013, 17.06.2013, 24.06.2013
& 25.06.2013.
Judgement On: July 12, 2013.
Prasenjit Mandal, J.: This application is at the instance
of the plaintiff union and is directed against the
judgment and order dated April 10, 2013 passed by the
learned Additional District Judge, 11th Court, Alipore in
Misc. Appeal No.235 of 2010 thereby setting aside the
order of injunction dated March 31, 2010 passed by the
learned Civil Judge (Senior Division), 5th Court, Alipore
in Title Suit No.204 of 2009.
The plaintiff/petitioner herein instituted the
aforesaid suit against the Registrar of Trade Unions,
Government of West Bengal, Union of India, Food
Corporation of India and other Office Bearers of the
plaintiff union praying for a decree of declaration that
the purported order dated July 7, 2008 passed by the
defendant no.1/opposite party no.1 herein is void,
illegal, invalid, without jurisdiction and not binding
upon the plaintiff/petitioner herein, that the plaintiff
union has not been dissolved and that the registration of
the plaintiff union is subsisting, permanent injunction
restraining the defendants and each of them and their
respective employees, men and agents from giving effect
to the purported resolution dated July 7, 2008 passed by
the opposite party no.1 dissolving the plaintiff union
and other consequential reliefs.
At the time of the filing of the said suit, the
plaintiff preferred an application for temporary
injunction along with a prayer for ad interim injunction.
The learned Trial Judge did not grant any ad interim
injunction, but, issued a show cause notice upon the
opposite party no.1 only. Ultimately, the learned Trial
Judge allowed the application for temporary injunction on
contests, by the order dated March 31, 2010, restraining
the defendant no.1 from giving any effect of the order
dated July 7, 2008 till the disposal of the suit.
Being aggrieved by such order, the defendant nos.4 &
5 preferred a misc. appeal being Misc. Appeal No.235 of
2010 which was allowed on contests against the respondent
no.1 and ex parte against the other defendants thereby setting aside the impugned order dated March 31, 2010. The Appellate Court also held, inter alia, that the defendants/appellants and such other defendants who were not noticed before the disposal of the application for temporary injunction may file written objections against the application for temporary injunction, if so advised. The learned First Appellate Court has also requested the learned Trial Judge to hear out the application for temporary injunction and dispose of it expeditiously preferably within two months. Being aggrieved by such orders, the plaintiff union has preferred this application.
Now, the question is whether the impugned order should be sustained.
Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the First Appellate Court has passed an elaborate order over the misc. appeal and he has concluded that the learned Trial Judge did not consider the contentions of the defendant no.4 in passing the impugned order in his absence for want of notice/summons upon him.
He has also held that the defendant no.4 is the main aggrieved person who is the President of the plaintiff union. So the defendant nos.4, 5 and other defendants who were not noticed may file written objections against the application for temporary injunction, if so advised. He has also recorded that the provisions of the C.P.C. does not contemplate the disposal of an application without notice to the parties against whom the allegations have been made.
It may be noted herein that while disposing of the said misc. appeal, the learned First Appellate Court has raised the question of maintainability of the suit, but, he was very much careful to note that his findings are for the purpose of the disposal of the misc. appeal and the learned Trial Judge shall not be influenced by his findings in any manner on this aspect.
Mr. Shaktinath Mukherjee, learned Senior Advocate appearing for the petitioner, has made an elaborate submission over the entire matter including the merit of the suit as well as the application for temporary injunction and thus, he has commented that the findings of the First Appellate Court cannot be supported.
He has drawn my attention that though the defendant no.4 retired from service on superannuation in 2001, he continued the post of President and the resolution for dissolution of the Union was taken on June 15, 2008 and the notice for dissolution was sent to the Registrar in Form C4 under Section 27 of the Trade Unions Act on June 24, 2008 and the Registrar had accepted the said resolution by the order dated July 7, 2008.
He has contended that as per Section 27 of the 1926 Act, the resolution was to be signed by the Secretary of the plaintiff and seven other Members of the Union and to be sent within a period of 14 days of the resolution to the Registrar and on being satisfied about the compliance of the provisions of the dissolution, the Registrar is to accept the same. In the instant case, the defendant no.4 being the President and some other members having signed on the notice but not by the Secretary, the concerned Registrar was not proper in accepting the said dissolution of the Union.
He has also contended that the principle of audi alteram partem rule, a principle of natural justice, well-grounded in our jurisprudence, has not been followed and this has been clearly observed by the First Appellate Court in respect of the order passed by the learned Trial Judge.
Mr. Mukherjee has contended since the relief has been sought for against the defendant no.1 who is the pioneer in accepting the resolution under Section 27 of the Trade Unions Act, the relief sought for is against the defendant no.1, who has been served before the disposal of the application for temporary injunction. So, the observation of the learned Appellate Court that the principle of natural justice has been violated, is totally wrong.
Mr. Mukherjee has also contended that as per direction of the Delhi High Court, a retired Judge had been appointed to supervise the election and the said election was held accordingly under her supervision and thereafter, the Delhi High Court has passed the ex parte judgment on February 18, 2011. So, the defendant no.4 has no right to remain in the said post at all and he was not the fit person to send the copy of the resolution to the Registrar. Thus, Mr. Mukherjee has contended that the impugned order of the First Appellate Court is not proper and should be set aside and the order of the learned Trial Judge should be affirmed.
Mr. Shaktinath Mukherjee has contended that in the instant case, the grievance of the plaintiff is against the opposite party no.1 only and that is why the relief was sought for against him and such relief could well be entertained by a learned Civil Judge having jurisdiction and an appeal could well be filed under Order 43 of the C.P.C. against the order of the learned Trial Judge. Since, the registration was dealt with by the opposite party no.1 on the basis of the application forwarded by the opposite party no.4 and some members of the union, the doctrine of representation would govern and so, the relief as sought for could well be maintained against the opposite party no.1 only and so, the appropriate relief could be granted when a notice was served only upon the opposite party no.1.
In support of his contention, he has referred to the decision of Union of India v. Parle Products Pvt. Ltd. reported in AIR 1994 SC 107 particularly paragraph nos.7 & 9, AIR 1995 SC 1049 paragraph no.11 and Sudhir Chandra Singh v. The Dist. Magistrate, Malda & ors. reported in AIR 1975 SC 732 particularly the paragraph no.33.
Mr. Mukherjee has almost based his argument over the entire matter involved in the suit, but, since the learned First Appellate Court has passed the order of remand and the application, in my view, is to be heard afresh, this Bench is refraining itself from recording findings in details in support of the conclusion so that the learned Trial Judge may be free to come to an independent conclusion on the basis of the materials placed before him.
Lastly, Mr. Mukherjee has referred to the decision of Delhi High Court, i.e., the judgment dated February 18, 2011 passed by Hon'ble Justice V.K. Jain in CS(OS) No.1288 of 2008 and thus, he has submitted that the defendant no.4 has been restrained from representing, claiming or holding himself as the President of the plaintiff no.2/union. He has also been restrained from convening any meeting of plaintiff no.2 and collecting any subscription, etc. claiming to be its President. Thus, by this order, the opposite party no.4 in the instant suit has been prohibited from functioning as President of the petitioner herein. Though, the opposite party no.4 had retired from service in the year 2001, he has been functioning as President of the petitioner so long time and as such, the learned Trial Judge was quite justified in passing the appropriate order and the First Appellate Court has, therefore, committed an error in setting aside the impugned order and directing to hear out the matter afresh after service of notice upon the opposite party nos.4, 5 and other defendants who were not noticed.
Mr. Mukherjee has also contended that if the plaintiff union has any grievance against any order passed by the Registrar accepting the resolution, there is a provision for appeal under Section 11 of the 1926 Act, on the limited grounds mentioned therein but in the instant case, no appeal lies against the order dated July 7, 2008 under Section 11 of the Act of 1926. So, the instant suit is quite maintainable.
While arguing over the maintainability of the suit, Mr. S.P. Roy Chowdhury, learned Senior Advocate appearing for the opposite parties, has stated since the Trade Unions Act provided the procedure for ventilating any grievance before the concerned Labour Court, the filing of a suit before the regular court is not permissible. He has contended that an appeal lies under Section 11 of the 1926 Act against the order passed under Section 27 of the said Act. He has drawn the analogy of a decision passed in respect of a matter under the provisions of the Consumer Protection Act and it has been held that the High Court cannot entertain an application under Article 226 of the Constitution to bypass a statutory appeal to a higher forum (reference S.L.P. (C) No.24228-24229 of 2012 (CC Nos.12891-12892 of 2012).
In order to draw the attention as to the maintainability of the suit, Mr. Roy Chowdhury has also referred to the decision of Jyoti Prakas Chattoraj & anr. v. Bagala Kanta Chowdhury & ors. reported in 36 CLJ 124 and thus, he has submitted that the jurisdiction of the subject matter is given only by law and cannot be conferred by consent. He also submitted that the decisions of 6 CLJ 74 and 20 CLJ 107 are very much important in such circumstances to decide the jurisdiction of the court to entertain a suit. So far as the jurisdiction over the subject matter is concerned, such jurisdiction must exist throughout the proceedings, and in the adoption of this view, full recognition is accorded to the theory that there is existence of jurisdiction all through the different stages of trial, as well at the time of its institution as at the time of its disposal.
He has also referred to the decision of Khushro S. Gandhi & ors. v. N.A. Guzder & ors. reported in 1969 (1) SCC 358 and thus, he has stated that the High Court has no power to decide the issue in revision and that consent of parties does not confer jurisdiction on the High Court.
He has also referred to the decision of Chiranjilal Shrilal Goenka v. Jasjit Singh & ors. reported in (1993) 2 SCC 507 and thus, he has contended that a decree passed without jurisdiction is a nullity and is nonest - Question of its invalidity can be raised even at execution stage.
In the instant case, the civil court having no jurisdiction to entertain the subject matter, the First Appellate Court has rightly dealt with the matter and remanded the matter for decision afresh.
He has also expressed to decide the question of maintainability of the matter on the basis of the plaint presuming that the facts recorded therein are true. Thus, he has supported the judgment and order passed by the learned Appellate Court.
Mr. Roy Chowdhury, has contended that although the defendant no.4 being the President of the plaintiff retired from service in 2001 on superannuation, he continued the post of President of the plaintiff till 2008 when the appropriate resolution dated June 15, 2008 for dissolution of the Union was adopted.
Mr. Roy Chowdhury has also contended that the defendant no.4 has filed an affidavit on earlier occasion, but, by a subsequent additional affidavit, he has affirmed that although he retired from service on medical ground, never he resigned from the post of the President of the plaintiff union and so, an appropriate opportunity should be given to him to contest the suit. But the impugned order has been passed by the learned Trial Judge without service of any notice upon him.
He has also contended that the resolution dissolving the Union was duly passed on June 15, 2008 and the notice was sent to the concerned Registrar under Section 27 of the Trade Unions Act on June 24, 2008 which was duly accepted w.e.f. July 7, 2008. After such a procedure, the petitioner filed a suit before the Delhi High Court and then a Special Officer was appointed on August 12, 2009 for holding the election. The election was held accordingly after the dissolution of the plaintiff union and the ex parte judgment had been passed on February 18, 2011.
Mr. Roy Chowdhury has also contended that the instant suit having been filed only on October 29, 2009, i.e., after the dissolution of the old union w.e.f. July 7, 2008, the petitioner had no locus standi to file the suit of the instant date.
Mr. Roy Chowdhury has also contended that though the order dated July 7, 2008 passed by the Registrar was under challenge, in fact, the defendant no.1 is not the pioneer of the said order. He has to act upon the materials placed before him by the concerned person. In the instant case, as per resolution dated June 15, 2008 the President and the other Members of the plaintiff Union gave the notice under Section 27 of the Trade Unions Act, 1926 (vide page no.155 of the application). So, these signatories are the persons who are affected by the order of temporary injunction.
So far as the prayer for temporary injunction is concerned, though the relief has been sought for against the defendant no.1 only, the affected persons, i.e., the President and other members of the Union must be served before the final disposal of the application for temporary injunction.
Mr. Roy Chowdhury has drawn my attention to the provisions of Order 39 Rule 3 of the C.P.C. and thus, he has submitted that before granting injunction, the Court shall in all cases except in urgent cases, direct notice of the application to the opposite party. In the instant case, though the prayer for temporary injunction having sought for against the defendant no.1 only, virtually the prayer is against all the defendants. But the said application for temporary injunction has been disposed of finally by the learned Trial Judge without service of notice upon all the defendants before the disposal of the same. Thus, the provisions of Order 39 Rule 3 of the C.P.C. have been violated. The compliance of this provision is mandatory. Thus, he has submitted that the learned First Appellate Court has rightly pointed out that the violation of the audi alteram partem rule has been done in the instant case and so, the Appellate Court has rightly passed the impugned order setting aside the order of the learned Trial Judge with comments as to the maintainability of the suit.
Having due regard to the submissions of the learned Advocates of both the sides and on perusal of the materials on record, I am of the view that the Appellate Court has discussed the materials on record and ultimately, he has concluded to the effect that a plain reading of the plaint would be sufficient to show that the main grievance of the plaintiff is against the defendant no.4 and other Office Bearers of the plaintiff union (i.e. other defendants). The plaintiff knew very well that had the defendant no.4 been noticed or had summons been issued to him before the injunction matter was taken up for disposal, he would have filed a written objection controverting the allegations made against him. Under the circumstances, the learned Trial Judge has deprived the defendant no.4 to forward his say in favour of the order dated July 7, 2008 passed by the Registrar as to the dissolution of the plaintiff Union and thus, the learned Trial Judge has done violation audi alteram partem. In fact, though the First Appellate Court has discussed on many points, his ultimate conclusion is that he has expressed opinion of remand on two grounds as to maintainability of the suit as the said question is purely on law and facts alleged in the plaint, assuming the facts stated in the plaint as true for limited purpose. Secondly, no notice was served upon the defendant nos.4, 5 & others. For that reason, while allowing the appeal, the learned Appellate Court has directed the appellants and other defendants to file written objections if so advised.
So far as the injunction matter is concerned, the entire merit of the suit need not be considered for the time being. In order to ascertain the grant of injunction, court is required to see the basic principles, i.e., prima facie case to go for trial, the balance of convenience and inconvenience in granting the injunction and lastly, if the injunction is not granted whether the plaintiff would suffer irreparable loss or not. Pursuant to the resolution dated June 15, 2008, the notice of dissolution dated June 24, 2008 had been sent to the Registrar of Trade Unions under the signature of the President, Niranjan Das, opposite party no.4, Md. Zinat, the opposite party no.8 and others vide page no.155 of the application. Pursuant to that notice, the Registrar of Trade Unions issued the letter dated July 7, 2008 to the respondent no.4 informing him that after the examination of the notice with reference to the resolution of the Union dated June 15, 2008 along with other documents, the facts stated therein were found to be satisfactory and so, the notice of dissolution had been accepted, registered and given effect to from July 7, 2008 under Section 27 of the Trade Unions Act (vide page no.156 onwards).
In the instant case, as recorded earlier, the question of maintainability of the suit is a prima facie factor to determine the prima facie case to go for trial. Since no notice of injunction was served upon the opposite party nos.4 & 8 who are, in my view, the most affected persons, it cannot be decided without hearing them as to balance of convenience and inconvenience in granting injunction and whether the plaintiff would suffer irreparable loss if the injunction is withheld. The First Appellate Court has, therefore, rightly remanded the matter upon certain directions as indicated thereon.
Pursuant to the Order in CS(OS) No.1288 of 2008, ultimately, Hon'ble Ms. Justice Usha Mehra, a former Judge of Delhi High Court was appointed Court Commissioner to conduct the election of the plaintiff/union and such election was conducted by her and the result was declared on August 12, 2009 declaring who were the President, General Secretary, Joint Secretary, Office Secretary, Treasurer, etc. as appearing at page no.85 of the application. Such facts are to be kept in mind at the time of the disposal of the application for temporary injunction as decided in the case Jyoti Prakash Chattroj (supra). The instant suit was filed in the year 2009 and so, the First Appellate Court has questioned as to the maintainability of the suit in addition to the provisions of the Trade Unions Act.
In consideration of all such facts and circumstances, I am of the view that in exercising the revisional jurisdiction under Article 227 of the Constitution, the judgment and order passed by the First Appellate Court should not be interfered with.
Thus, I find that so far as the prayer for temporary injunction is concerned, Niranjan Das and other office bearers are the most effected persons in respect of the dissolution of firm and not the opposite party no.1, i.e., the Registrar of Trade Unions. Therefore, before the disposal of the said application for temporary injunction according to Order 39 Rule 3 of the C.P.C., a notice must be served upon them by the learned Trial Judge.
The First Appellate Court has made an elaborate discussion in this regard and he has ultimately concluded that though he has made a detailed observation about the facts involved in that matter, an opportunity should be given to the defendants to file their written objections, if any. Accordingly, the learned First Appellate Court has held that the appeal should be allowed setting aside the impugned order on the ground that there was violation of natural justice. Accordingly, he directed the learned Trial Judge to re-hear the application in presence of the appellants and other defendants afresh.
As a precautionary measure, he has recorded that he has not gone into the merits of the allegations and the expressions made by him will not cause prejudice to the parties and the learned Trial Judge will not be debarred from taking an independent opinion on the point of maintainability of the suit at the time of the final disposal of the suit. Lastly, he has requested the learned Trial Judge to hear out the application for injunction and dispose of the same expeditiously, preferably within two months. So, I am of the view that the learned First Appellate Court has passed a balanced order and that there is nothing to interfere with the same.
In that view of the matter, I am of the opinion that there is no scope of interference with the impugned order.
The revisional application is, therefore, dismissed. Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)