Delhi District Court
M/S Jain International vs General Mazdoor Lal Jhanda Union ... on 23 May, 2011
In the court of Sh. Devender Kumar CCJ/ARC (N/E),
Karkardooma Courts Delhi.
UNIQUE I.D. NO. : 02402C0077802009
CIVIL SUIT NO. 126/09
IN THE MATTER OF :
M/S JAIN INTERNATIONAL
523, 524, FUNCTIONAL INDUSTRIAL ESTATE,
PATPARGANJ, DELHI 110092
PLAINTIFF
Versus
1.GENERAL MAZDOOR LAL JHANDA UNION (REGD.) (AFFILIATED C.I.T.U.) THROUGH ITS GENERAL SECRETARY B1/A, NATHU COLONY (EAST) 100 FOOTA ROAD, SHAHDARA, DELHI 93 ALSO AT : 3 VP HOUSE, RAFI MARG, NEW DELHI 1
2. SH. SURESH KUMAR S/O SH. MAHABIR SAINI R/O FLAT NO. G3, BLOCK - B, RAM PRATHSHA, GHAZIABAD, UP
3. MOHD. HAFFIZ S/O MOHD. MAJALIS, C/O MOHD. YASIN B6/240, SRI RAM COLONY, NEAR MCD SCHOOL, RAJIV NAGAR, DELHI 94 DEFENDANTS Date of Institution of the Suit : 12.03.09 Arguments Heard : 23.05.11 Date of Judgment : 23.05.11 Suit No. 126/09 Page No. 1/15 SUIT FOR PERMANENT INJUNCTION Judgment:
1. Vide this judgment, I shall dispose off a suit for permanent injunction filed by the plaintiff against the defendant. The brief facts of the case are as under :
2. The plaintiff has alleged that he is the proprietor of M/s Jain International and Sh. Navneet Goswami, Manager of the plaintiff, has been authorized to institute this suit on behalf of the plaintiff. It is further alleged that the plaintiff is doing his business for the last more than two decades without any discrimination amongst its employees and paying them all due benefits. It is further alleged that the defendant no. 1 is the Union and defendant no. 2 and 3 are the exemployees of the plaintiff. It is further alleged that the plaintiff had entered in to an agreement with its employees through the Union namely Shahdara General Udyog Shramik Union (Regd.) on 06.12.06 and said agreement is valid up to 05.12.09 and the defendant no. 2 and 3 have also signed the said agreement, but now they have been dismissed from their jobs on 31.12.08, on account of misconduct. It is further alleged that the defendant no. 1 has served a demand notice upon the plaintiff thereby claiming that the employees of the plaintiff are its members and the defendant no. 1 has levelled various allegations against the plaintiff and they also demonstrated on 12.02.09 in front of the gate of the plaintiff and hampered all business activities. It is further alleged that the defendants have again approached to the plaintiff on 04.03.09 and threatened to carry out a dharna and demonstration for three days and also to burn effigy at the factory premises. By the way of Suit No. 126/09 Page No. 2/15 present suit, plaintiff has prayed that the defendant be restrained from holding any demonstration, Dharna, Gherao, raising slogans etc. within the radius of 500 meters from the main entrance of the suit property.
3. The defendants appeared before this court and have filed their WS thereby alleging that the suit is not maintainable as holding of peaceful meeting and demonstration is a legitimate right of the Trade Union and in the present case, ingress and egress of the establishment was never stopped by the defendants. It is further alleged that the suit is barred U/s 41 (h) & (i) of Specific Relief Act as the plaintiff has equally efficacious remedy under Industrial Dispute Act. It is further alleged that the plaintiff has terminated the services of defendant no. 2 and 3 illegally and the defendant no. 2 and 3 are the member of defendant no. 1 and the suit against the defendant no. 1 is hit by section 18 of Trade Union Act 1926. It is further alleged that the plaintiff has no locus standi to file this case as the area of 500 meters from the main entrance is pertaining to some other person and the plaintiff cannot seek this relief. It is further alleged that as per clause 2 of the Agreement between the plaintiff and its employees, plaintiff is under obligation to give annual increment in the wages @ of 10% effective from Jan. 2007, but the plaintiff has not discharged its obligation and the members of defendant no. 1 complained to the defendant no. 1. It is further alleged that the defendant no. 1 being union approached to the plaintiff for amicable redressal, but the plaintiff did not cooperate due to defendants have to stage the demonstration, but the same was peaceful. It is further alleged that the plaintiff has terminated the services of the defendant no. 2 and 3 who are having their membership with the defendant no. Suit No. 126/09 Page No. 3/15 1 in the arbitrary manner and the Industrial dispute is already pending against the same. It is further alleged that all the allegations of the plaintiff are fabricated otherwise the SHO concerned would have lodged the FIR against the defendants if their demonstration was not peaceful. It is further alleged that the defendants have never extended threat to burn effigy or to hold any demonstration thereby stopping the ingress and egress of the business activities of other labourers and management. The defendants have sought the dismissal of the suit.
4. As per the pleadings of the parties, following issues have been framed by this court vide order dated 08.04.09.
ISSUES :
1. Whether court has got jurisdiction U/s 18 of Trade Union Act, 1926 ? OPD
2. Whether suit is barred U/s 41 (h) and (i) of the Specific Relief Act, 1963 ? OPD
3. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed ? OPP
4. Relief
5. To prove the case, plaintiff has examined PW1 Sh. Navneet Goswami, PW2 Sh. S. K. Jain, General Manager of the plaintiff, PW3 Sh. Narender Mehta, Production Manager and closed PE. Defendant has examined Sh. Harishyam Singh as DW1 and closed DE. The defendants no. 2 and 3 have not lead any evidence.
I have heard the arguments and perused the record. My issue wise findings are as under :
Suit No. 126/09 Page No. 4/15
6. ISSUES NO. 1 & 2 :
The onus to prove these issues was fixed upon the defendants. It is submitted by Counsel for defendant no. 1 that as per section 18 of Trade Union Act, 1926, the jurisdiction of this court is barred as no case can lie against the Trade Union or its office bearers in respect of any act done in furtherance or enforcement of any right of the employees. It is further submitted that the plaintiff has equal efficacious remedy to file this suit before Industrial Tribunal, due to suit is also barred U/s 41 (h) and (i) of Specific Relief Act and the same is liable to be dismissed.
On the other hand, Counsel for plaintiff has opposed the submissions and has submitted that this court has got jurisdiction to entertain this suit of injunction as the present dispute is not covered U/s 18 of Trade Union Act and this relief of permanent injunction cannot be obtained from Industrial Tribunal, due to suit is also not barred U/s 41 (h) and (i) of Specific Relief Act and the same is liable to be decreed.
I have heard the arguments and perused the record. As per section 18 of Trade Union Act, 1926, the jurisdiction of civil court is barred, if it is alleged that the union induces the other workers to break the contract of employment and also in case of tortuous act. Besides it, in 2006 LLR 283 Delhi titled Vidhya Sagar Institute of Mental Health & Neuro Services Vs. Vidhya Sagar Employees Union, it has been held that the civil court has jurisdiction to entertain the suit of injunction in these cases. In view of the law laid down by the Hon. High Court of Suit No. 126/09 Page No. 5/15 Delhi, it is clear that this court has jurisdiction to entertain the suit and suit is not barred U/s 18 of Trade Union Act, 1926.
So far the sections 41 (h) and (i) of Specific Relief Act are concerned, the suit for permanent injunction is barred U/s 41 (h) of Specific Relief Act where the relief of permanent injunction can be obtained by any other usual mode of proceedings. Further, as per section 41 (i) of Specific Relief Act, if the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court and the suit of permanent injunction shall be barred. In the present case, the defendant has no where explained as to whether this relief of permanent injunction is available to the plaintiff before the Industrial Tribunal under Industrial Dispute Act, 1947. Tribunal under Industrial Dispute Act, 1947 cannot grant this relief of permanent injunction and this relief cannot be obtained by the plaintiff by any other usual mode of proceedings, due to the plaintiff has no other efficacious remedy. Further, the defendant has not pointed out as to which of the conduct of the plaintiff make him disentitle for the relief of permanent injunction. The defendants have only taken a plea that the defendant no. 2 and 3 have been expelled by the plaintiff from the job without any reason and the plaintiff has not given benefit of 10% of the wage rise to the employees. Admittedly, the industrial dispute regarding the termination of defendant no. 2 and 3 is already pending before the competent authority and the same shall be decided by the competent authority itself. The defendants are allegedly extending threats to hold a demonstration and to stop the ingress and egress of the other employees as well as Management and to close the door of the factory due to the plaintiff has Suit No. 126/09 Page No. 6/15 approached to the court. The defendants have no where shown any such conduct of the plaintiff except these allegations which make the plaintiff dis entitle for the relief of permanent injunction. As such, the suit of the plaintiff is not barred U/s 41
(h) or (i) of the Specific Relief Act. To know the exact legal preposition, it is better to go through the legal pronouncements. It has been held by Hon. High Court of Delhi in 2006 LLR 1140 titled Escorts Heart Institute and Research Centre Ltd.
Vs. Delhi Mazdoor Sangthan Regd & Ors. that the agitated workers cannot gherao the managerial persons and willing persons and besides that they cannot destroy the property of the employer and they may be restrained. Further in 2003 LLR 684 Delhi titled M/s Capital Business System Pvt. Ltd. Vs. General Mazdoor Union (Regd.) and Ors. held that the demonstration, dharna, gate meeting etc. are agitational activities and cannot be permitted to the trade union or its members within the radius of 100 meters from the office and residence of the Directors. These judgments clearly suggest that the relief of permanent injunction against holding any demonstration, dharna or gherao is maintainable against trade union. As such, neither the jurisdiction of the court is barred nor the suit of the plaintiff is barred U/s 41 (h) & (i) of the Specific Relief Act. Both the issues are decided against the defendants as they have failed to discharge the onus to prove these issues.
7. ISSUE NO. 3 :
The onus to prove this issue was fixed upon the plaintiff. To discharge the onus, the plaintiff has examined three PWs and has also cross examined the DW1. Suit No. 126/09 Page No. 7/15 Before deciding the issue, it will be appropriate if the evidence lead by the parties be considered. PW1 has deposed that as per clause 2 of document Ex. PW1/2, the plaintiff is under obligation to increase 10% in the wages of all workman with effective from January 2007, but it is denied that no increment of 10% was given. It is admitted that the defendant union had given intimation to the plaintiff regarding gate meeting of the workers scheduled on 12.02.09 at 6/7 p.m. It is denied that the workers gathered at gate at the 4.30 p.m. in the strength of 100 and the peace of plaintiff was disturbed due to the demonstration and dharna, but the plaintiff did not lodge any complaint with the SHO concerned or Labor Department, yet SHO concerned was informed vide letter Ex. PW1/12 which was received on 12/02/09 at 11.20 a.m. It is denied that no gate meeting was held at 4.30 p.m. It is admitted that the factory was closed prior to 6 p.m.. It is further deposed that the police visited the spot at 6.30 p.m. It is further denied that Sh.
Khem Chand, Darshan Lal, Pramod Singh, Sarvan Kumar, Dharmpal gave beatings to Mohd. Hafiz on 08.02.08 or he got treatment from ESI. It is admitted that the above said persons are the member of Shahdara General Udyog Shramik Union (Regd.) affiliated with AITUC. It is further admitted that the defendant no. 2 and 3 are the member of General Mazdoor Lal Jhanda Union, but they were not the members prior to 08.02.08. It is denied that defendant no. 2 and 3 have been terminated due to inter rivalry of the two trade unions. It is admitted that Ex. PW1/7 is the notice of the plaintiff. It is denied that in the above said letter, it was stated that no increment will be given to those members who were the members of General Mazdoor Lal Jhanda Union. It is further deposed that the letter Ex. Suit No. 126/09 Page No. 8/15 PW1/13 dated 28.02.09 was received by the management on 04.03.09 at 2.10 p.m., but it is denied that it was received on 01.03.09. It is further deposed that when the letter Ex. PW1/13 was received, the demonstration was going on. It is further deposed that the complaint dated 05.03.09 shows that the demonstration was not peaceful, but he has no other document except Ex. PW1/14 to show that the demonstration was not peaceful. It is admitted that the demonstrators did not burn effigy of the proprietor or any officials of the plaintiff. It is further deposed that the plaintiff did not have any action report from the police as the same was not given by the police.
PW2 has deposed that on 12.02.09, he was posted at Noida unit at the morning hours, but he came to Delhi Unit at about lunch time and stayed till the conclusion of demonstration. It is denied that only gate meeting was arranged at Patpar Ganj Unit. It is further deposed that on 06.03.09 at about 5 p.m., when he came to Delhi, the demonstration was at conclusion, but he has no proof to show that there was huge crowd or there was blockage on the main gate of the Delhi Unit. It is further deposed that the demonstrators threatened the management that they would come back within four to five days and burn the effigy and will demonstrate with more force and strength. It is admitted that Sh. Khem Chand, Dharshan Lal, Pramod Singh, Sharvan Kumar, Dharm Pal were the members of Shahdara General Udyog Sharmik (Regd.) It is further admitted that General Mazdoor Lal Jhanda Union (Regd.) is also representing the workers of said union during that period. It is further deposed that he is not aware whether Suresh and Mohd. Afiz are the members of said union. It is admitted that the termination of Suit No. 126/09 Page No. 9/15 Sh. Suresh and Mohd. Afiz is under challenge. It is admitted that the defendant union through its letter dated 09.02.09 intimated the plaintiff management that the union could organize a gate meeting on 12.02.09 and police arrived at 6.30 p.m. on 12.02.09. It is further deposed that the police received the letter of demonstration on 04.03.09 at 2.10 p.m. It is admitted that the letter of intimation of demonstration was received from Speed Post and the letter is dated 28.02.09.
PW3 has deposed that the making of production report depends on shipment and he cannot say about the number of shipments took place during the period from January to 30th of April 2009. It is further deposed that after hearing the shouting of demonstration, the workers left their work spot and stand up to see as to what is happening outside. It is admitted that he has no figure to show as to how much loss has been caused to production or shipment by demonstration. It is denied that no demonstration has taken place on 12.02.09. It is further deposed that the demonstration was not peaceful and demonstration was going on 04.03.09 to 06.03.09. It is further deposed that he has not brought any document to show that there is any fall in production and shipment target on the days of demonstration. It is further deposed that the workers have not organized any gate meeting or demonstration after 06.03.09 till date.
DW1 has deposed that as per Ex. PW1/2 Clause 2 shows that from the year January 2007, the salary will be increased by 10% per year and the employees will not raise any financial demand till 05.12.09. It is further deposed that about 60 or 65 workers are the members of General Mazdoor Lal Jhanda Union and the workers took the membership in the month of Jan.Feb. 2008, but he has not Suit No. 126/09 Page No. 10/15 brought the membership form. It is admitted that the document Ex. DW1/M1 is submitted by Union along with written statement and the member workers had authorized the union to represent them in the present case, but it does not bear the signature of defendant no. 3. It is further deposed that the person who has signed the document has withdrawn the membership of Shahdara Mazdoor Shrimik Union on 24.03.09 and accepted the membership of the defendant no. 1. It is admitted that the domestic inquiry was conducted against the defendant no. 2 and 3 and the representative namely Sh. Tripurari Sharan was appearing on behalf of defendant no. 2 and 3 till the end of the inquiry and he is the Executive Committee Member of the Union. It is admitted that industrial dispute is pending regarding the termination of services of defendant no. 2 and 3. It is further admitted that Ex. PW1/10 is a notice sent on behalf of defendant no. 1 for the demonstration pertaining to the period 6 to 7.30 p.m. Voluntarily it was gate meeting. It is further admitted that as per letter dated 12.02.09, timing was mentioned as 5.30 pm to 7.30 pm and 100 members have been mentioned in the letter. It is further deposed that they have reached the site at 6 pm on 12.02.09 and there were 50 and 60 persons. It is further deposed that they have also used mike/loud speaker at the site of demonstration, but it is denied that they blocked the way of the officials of the plaintiff. It is further deposed that they hold dharana on 04.03.09, 05.03.09 and 06.03.09 in front of the factory premises of the plaintiff. It is further admitted that after 13.03.09, various demonstrations have taken place against the plaintiff, but the same have taken place about 50 fts away from the gate of plaintiff as per the order of the court.
Suit No. 126/09 Page No. 11/15
I have gone through the testimony of witness of both parties. In view of the testimonies of witnesses of both parties, it is clear that the defendant no. 2 and 3 are the members of the defendant no. 1 and defendant no. 1 is contesting on their behalf and holding demonstration just to bow down the plaintiff to their demands. The termination of the defendant no. 2 and 3 is already under challenge, due to this court is not required to deal with it. The main issue before this court is as to whether the gate meeting or demonstration being held by the defendant are of such nature which require that this court should restrain the defendants. DW1 has already admitted that the defendants have staged the gate meeting at the premises and used loud speaker and mike during the demonstration. This deposition of the DW1 is sufficient to prove that their demonstration was instigating and agitating their employees for holding demonstration or shouting slogans. It is further admitted that 50 to 60 person were gathered at the spot whereas 100 persons were to be gathered during the demonstration and if the demonstration was being carried out at the factory premises, then the ingress and egress of other employees as well as officials is bound to hamper. It has been held by Hon. Supreme Court of India in AIR 1962 SC 1162 titled Kameshwar Prasad & Ors. Vs. State of Bihar that the applicant has a right to demonstrate and to give way to their feelings and there was no statutory provision restraining them from holding the demonstration in side the premises, but this judgment has been relied upon by Hon. High Court of Delhi in 2005 LLR 1106 titled Press Trust of India Employees Vs. Press State of India and has distinguished this judgment that the Suit No. 126/09 Page No. 12/15 demonstration may be carried out by the employee, but a particular place is not defined at which demonstration may be carried out. In 2006 LLR 283 Delhi titled Vidya Sagar Institute of Mental Health and Neuro Sciences Vs. Vidya Sagar Hospital Employees Union, it has been held that employee has no right to cause obstruction in the ingress and egress or staging demonstration since for the redressal of grievances, they have to recourse to the forum as provided under the law instead of indulging in such activities. In this case, the Hon. High Court has laid down the principles and held that the civil court has jurisdiction to entertain the suit. It is further held that the balance is to strike between the two competing and conflicting interests and it may be done by fixing the distance from the employers premises at which the demonstration may be carried out. Further in 2003 LLR 684 titled M/s Capital Business System Pvt. Ltd. Vs. General Mazdoor Union (Regd.) and Ors., it has been held that demonstration and gate meetings are agitational activities and will not be permitted to the Trade Union or its members. In view of the law laid down by Hon. High Court, it is clear that this court has well jurisdiction to restrain such type of demonstration, gherao and gate meetings and demonstrations as these are not sole fundamental rights of the trade unions. In the present case, it is clear from the evidence that the defendants are carrying out the demonstration and they are stopping ingress and egress of other employees. Their conduct is also clear from the letter Ex. PW1/13 which was sent on the same day at 2.10 p.m. when the demonstration was to be carried out. As such, the defendants are not giving proper advance information to the plaintiff or Suit No. 126/09 Page No. 13/15 appropriate authorities prior to holding any demonstration due to the work of the plaintiff is definitely abrupted by demonstration. PW2 and 3 have already deposed that hearing the shouting and slogans by the defendants, other workers also left the work and gathered at the spot due to the work of the plaintiff also suffers and defendants cannot allow to do such type of activities. As such, the plaintiff has proved that he is entitled for the relief of permanent injunction as the threat of the plaintiff is genuine. As such, the plaintiff has discharged the onus to prove the issue.
8. RELIEF :
Plaintiff has discharged the onus to prove this issue, accordingly the plaintiff is entitled for the relief. I hereby restrain the defendants, their agents, servants, legal heirs, employees, etc. from holding any demonstration, dharna, gherao, raising slogans within the radios of 25 meters from the main entrance of the factory premises bearing no. 523/524, Functional Industrial Estate, Patparganj, Delhi 110092 and also to carry out any demonstration, Dharna, Gherao or raising slogans at the residence of the plaintiff i.e. C12, Preet Vihar, Delhi 92. With these observations, suit is disposed off. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (Devender Kumar) CCJ/ARC/MM 23.05.11 Suit No. 126/09 Page No. 14/15 C.S. No. : 126/09 23.05.11 Pr. : Counsels for both parties Arguments heard.
Vide separate judgment, suit of the plaintiff has been disposed off. Decree sheet be prepared accordingly. File be consigned to record room.
(Devender Kumar) CCJ/ARC/MM\ 23.05.11 Suit No. 126/09 Page No. 15/15