Delhi District Court
M/S Al Karma vs Sh. Krishan Mohan Jha on 17 May, 2013
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 10/2012
IN THE MATTER OF:
M/s AL Karma
57, Najafgarh Road ( Ram Road)
New Delhi110015
Through its Partner
Sh. Sandeep Chaudhary ......Plaintiff
VERSUS
1. Sh. Krishan Mohan Jha
S/o Sh. Tripat Mohan Jha
A71, Kasho Ram Park,
Uttam Nagar, New Delhi59
2. Sh. Monohar Singh Bisht
S/o Late Sh. Laxman Singh Bisht
D17, Partap Vihar, Part03,
Nangloi, New Delhi41
3. Sh. Yashpal Yadav
S/o Sh. Moti Lal Yadav
RZ230A, Dharam Pura,
Najafgarh, New Delhi.
4. Sh. Naginder Singh
S/o Sh. Sube Singh
150, Kharkhoda, Sonipat
Haryana.
5. Sh. Surinder Kumar Dahiya
S/o Sh. Ram Chander,
Nahri, Sonipat, Haryana
6. Sh. Kula Nand Jha
Suit No. 10/2012 Page No. 1 of 14
S/o Sh. J. Jha
C49, Chander Vihar, Nelothi Extn.
Nangloi, New Delhi41
7. Sh. Shiv Nath Rai
S/o Sh. Kailash Rai
D17C, West Vinod Nagar,
Mandawli Fazal Pur, New Delhi92
8. Sh. Madan Lal Prasad
S/o Sh. Ram Rattan 70, C.G. III, Part I,
Gali No. 5, Sai Enclave, Mohan Garden,
New Delhi
9. Sh. Ravindran Nair
s/o late Sh.Bhaskaran Pillai
564, Lado Sarai, New Delhi30.
10.Sh. Sant Baksh Singh
S/o Sh. Sheetal Baksh Singh
RA329, Vishnu Garden, Khayla, New Delhi.
11.Sh. Virender Yadav
S/o Sh. Kailash Yadav
W153, A65, Ram Colony,
Rama Road, New Delhi15.
12.Sh. Jogender Mishra
S/o Sh. Hari Narayan Mishra
A71, Keshro Ram Park,
Uttam Nagar, New Delhi59
13.Sh. Mukesh Kumar Jha
S/o Sh. Kamla Kant Jha
RZ64, Nangal Dairy, Arjun Park
New Delhi43.
14.Sh. Rakesh Verma
S/o Sh. Prem Raj
D147, Tripathi Enclave
Prem Nagar2, Nangloi,
Suit No. 10/2012 Page No. 2 of 14
New Delhi41.
15.Sh. Pan Singh
S/o Sh. Prem Singh
C70, Gagan Vihar,
Ghaziabad ( U.P.)
16. Sh. Surinder Singh
S/o Sh. Mahipal Singh
H. No. F4/283 to 286,
Sultan Puri, Delhi110086
Defendant No. 12 to 16 Also at:
M/s Al Karma
57, Najafgarh Road ( Rama Road)
New Delhi110015 .......... Defendants
Date of Institution: 20092007
Date of Reserving for Judgment: 29042013
Date of Judgment : 17052013
SUIT FOR PERMANENT INJUNCTION
JUDGMENT: ( Exparte)
1. Vide this judgment, I shall dispose of the suit of permanent injunction filed by the plaintiff.
2. The brief facts of the case as per the plaintiff are as follow: The plaintiff is a partnership concern and doing its business in the name and style of M/s Al Karma. The defendant No. 1 to 11 were employees of the plaintiff who were suspended on 17092007 with te due process of law for their undesirable activities of creating Suit No. 10/2012 Page No. 3 of 14 unrest of the labour in the factory and defendant No. 12 to 16 are the employees of the plaintiff who are supporting the other defendants in their illegal activities. The plaintiff is doing its business without having any discrimination amongst its employees and paying the paying the pay and usual allowances for which the are entitled. All the defendants are creating nuisance by blocking the ingress and egress of the plaintiff, now the plaintiff is suffering its business due to unconstitutional and illegal activities of the defendants. Also the defendants are instigating and provoking the other employee to work slow and even blocking the way of the employees as well as the officials. It is further submitted that the plaintiff received a letter dt. 21082007 on behalf of the defendants in which they put their conditions to the plaintiff pertaining to their increment and even threatened orally that if the plaintiff is not met with the conditions, then the plaintiff will face the slow down and strike. It is further submitted that the plaintiff submitted a letter before the Dy. Labour Commissioner, FBlock, Community Center, Karamura, New Delhi by seeking intervention to avoid indiscipline, loss of production and illegal strike. In the first week of September 2007, the defendants No. 1 to 11 distributed the pamphlets by which the plaintiff was threatened the the officials of the plaintiff will face dire consequences if the demand of the Suit No. 10/2012 Page No. 4 of 14 defendants are not fulfilled. The plaintiff tried its best to negotiate with the defendant but the defendants did not listen the same. A letter dt. 13092007 & 18092007 was also submitted to Dy Labour Commissioner but no result came out and the defendants are continuing indulge in their illegal activities. Also on 17092007 the plaintiff submitted a request to the SHO PS Moti Nagar, Delhi in this respect but no heed was given towards the same. It is further submitted that irreparable loss and injury will be caused to the plaintiff if the defendants are not restrained. Hence the present suit is filed.
3. On the other hand the defendants in their written statement have submitted that the plaintiff has no come before this court with clean hands and suppressed the material facts. It is submitted that on 21082007 the management of the plaintiff called all the employees of the company including all the defendants and directed all the employees that they should give written representation regarding their increment and the employees duly did the same. Thereafter, 11 works had been suspended without disclosing any reason and the order for conducting the domestic enquiry against the 11 employees who are presently facing the enquiry and other defendants are still working with the plaintiff, hence the suspension and domestic enquiry against the 11 worker Suit No. 10/2012 Page No. 5 of 14 are illegal, unjustified and is for harassin the defendants. Further the plaintiff gave charge sheet to the 11 workers without any rhyme and reasons by the management of the plaintiff. It is further submitted that suit of the plaintiff is not maintainable and barred under section 18 of the Trade Union Act which bars the civil courts to entertain any civil or other proceedings against the registered trade union. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
4. The plaintiff has filed replication to the written statement filed by the defendant. In his replication the plaintiff has reaffirmed the contents made in the plaint and denied all the allegation made by the defendant in his written statement and further submitted that the suit of the plaintiff be decreed.
5. From the pleadings of the parties following issues were framed vide order dt.24102008:
i) Whether the plaintiff is entitled to decree of permanent injunction as prayed? OPP
ii) Whether suit of the plaintiff is barred u/s 18 of the Trade Union Act? OPD
6. To prove his case, the plaintiff has examined Sh. Gokul Singh as PW1. PW1 has relied upon the following document: Suit No. 10/2012 Page No. 6 of 14
i) Representation letter written by the employee is Ex. PW1/A.
ii) Letter dt. 24082007 & 13092007, 17092007, 18092007 made to the Dy. Labour Commissioner is Ex. PW1/B, D, F G, respectively.
iii) Notice dt. 06092007 is Ex. PW1/C.
iv) Letter dt. 17092007 made to SHO is Ex. PW1/E.
v) Notice dt. 18092007 is Ex. PW1/H
vi) Charge sheet and suspension letter dt. 17092007 is Ex. PW1/I.
7. Further the plaintiff has examined Ather Murad as PW2. PW2 has produced his evidence by way of affidavit which is Ex. PW2/A. In her affidavit, the PW2 has reiterated the facts mentioned in the plaint and put reliance on the documents already exhibited PW1/A to PW1/I. Document Ex. PW2/1 which is deed of partnership, PW2/2 which is Pamphlet and Mark A which is chargesheetcum Suspension order of the defendant No. 11.
8. On the other hand further defendant did not defendant his case and were proceeded exparte vide order dt. 28022013.
9. I have heard the counsel for the plaintiff and have gone through the record carefully.
10.My issue wise finding is as under:
11. Issue No. 1 Whether the plaintiff is entitled to decree of Suit No. 10/2012 Page No. 7 of 14 permanent injunction as prayed? OPP The case of the plaintiff is that the defendants have threatened the plaintiff vide letter dated 21/8/2007 as well as orally that if demands of the defendants are not met then plaintiff would face strike in the premises. In support of its case the plaintiff has relied on deed of partnership Ex. PW1/1; letter dated 21/8/2007 Ex. PW1/2; letter dated 24/8/2007 sent to the Dy. Labour Commissioner; pamphlet Ex. Pw1/4; letter dated 6/9/2007 Ex PW1/5; letter dated 13/9/2007 Ex. PW1/6; letter dated 17/9/2007 to SHO Moti Nagar Ex. PW1/7; letter dated 17/9/2007 and 18/9/2007 sent to Dy. Labour Commissioner Ex. PW1/8 & Ex. PW1/9; notice dated 18/9/2007 Ex. PW1/10 & chargesheetcum suspension order of defendant nos. 1 to 11 Ex. PW1/11.
12.In this regard, in Kwality Restaurant vs Mr. Jagdish And Ors. :
2004 IAD Delhi 102, 107 (2003) DLT 541, it was held as under:
12. True, the right to freedom of speech and expression is guaranteed under the Constitution of India but the same is subject to reasonable restrictions as enshrined under article 19 of the Constitution of India. The Trade Unions or their office bearers can resort to demonstration/dharna but in peaceful manner and not in the manner as alleged by the plaintiff in their plaint. Legitimate rights of the Unions can be preserved by permitting them to hold demonstration at a reasonable distance from the premises of the plaintiff or the residence of their managing partners as plaintiff to have a right granted under the Constitution of India to carry on their trade which right is being threatened by the defendants by sending various letters to the plaintiff putting them in fear of carrying on their business legitimately.Suit No. 10/2012 Page No. 8 of 14
13. Similar question came up before Hon'ble Mr.Jusitce J.D.Kapoor where too the plaintiff received a letter from defendant No.1, Union threatening a massive demonstration before the plaintiff bank situated at Parliament Street. While relying on another judgment rendered by Hon'ble Mr.Justice Anil Dev Singh, reported in 1991, 2nd 792, justice J.D.Kapoor held that " what was relevant as to the right to freedom of speech and expression for the purposes of holding demonstration and what was the nature and extent of right to hold demonstration and whether such right was an absolute right in terms of article 19 of the Constitution of India, it was held that the legitimate right of the Unions could be preserved and protected only by allowing them to hold demonstration at a distance of 50 or 100 metres from the premises of the defendants".
14. Similar judgment of like nature is also reported in Apex decision Vol7, 2001, Delhi where too while placing reliance on the judgment, it was held that the defendants be restrained from holding demonstration/dharnas within a distance of 100 metres from the office premises of the Director subject to the condition that they would choose a time when no classes are held in the vicinity nor would create such situation that may vitiate the atmosphere of the educational institutions. In the instant case also, the defendants threatened the plaintiff to hold demonstration/dharnas in front of the restaurant of the plaintiff. Although, they have a right to redress their grievances by such means but they cannot prevent the plaintiff or their customers from gaining entry to the Restaurant and if it is allowed to be done, it shall also violate the right of the plaintiff to carry on their business smoothly.
13.Similarly in Press Trust Of India Employees vs Press Trust Of India : 119 (2005) DLT 266, (2005) IIILLJ 22 Del, it was held as under:
8. Appellants are claiming a right to demonstrate. Even if their right to demonstrate peacefully was conceded, they could not invoke this right to demonstrate inside the building of the employer or its compound which could have the consequence of disrupting the official functioning and operations of the Suit No. 10/2012 Page No. 9 of 14 employer. The Supreme Court judgment cited by the learned counsel for the appellants is not an authority authorising an employee to demonstrate on the face of the employer or to disrupt the normal functioning of the employer's office and management. The judgment does nothing more than defining the word demonstration and it nowhere lays down that an employee had a right to demonstrate at a particular place which may otherwise may not be available under any regulation or law. This view is supported by the Supreme Court judgment in Railway Board, New Delhi v. Niranjan Singh, AIR 1969 SC 966 in which it was held that no one had a fundamental right to hold meetings in Government premises and those who work in public office had no right of holding meetings at these offices even if it is most convenient place to do so. It would be instructive to quote from this judgment which holds: There is no fundamental right for anyone to hold meetings in government premises. The fact that those who work in a public office can go there does not confer on them the right of holding a meeting at that office even if it be the most convenient place to do so. The fact that the citizens of the country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please. The exercise of those freedoms will come to an end as soon as the right of someone else to hold his property intervenes. Such a limitation is inherent in the exercise of those rights. The validity of that limitation is not to be judged by the tests prescribed by subarts. (2) and (3) of Article 19. In other words the contents of the freedoms guaranteed under cls. (a), (b) and (c) do not include the right to exercise them in the properties belonging to others.
14.From the aforesaid discussion, it is apparent that the unions/employees can hold peaceful demonstrations but at a reasonable distance from the premises of employment and not inside the employment/work place. In view of the foregoing discussion, the plaintiff is entitled to the decree of permanent Suit No. 10/2012 Page No. 10 of 14 injunction. This issue is accordingly decided in favour of the plaintiff and against the defendants.
15.Issue No. 2 Whether suit of the plaintiff is barred u/s 18 of the Trade Union Act? OPD The burden to prove this issue was on the defendants but the defendants have neither led any evidence in this regard nor otherwise proved this issue.
16.Even otherwise, In Indian Express Newspapers vs T.M. Nagarajan And Ors. : 1987 (15) DRJ 212, 1988 LablC 1067, 1988 RLR 194, it was held as under:
(13) First question which arises for consideration is whether the jurisdiction of Civil Courts is barred under the provisions as contained in Section 18 of the Trade Unions Act, 1926. Section 18 of the Trade Unions Act. 1926 reads as under : "18. Immunity from civil suit in certain cases(1) No suit or other legal proceeding shall be maintainable in any Civil Court against any registered Trade Union or any officebearer or member thereof in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the Trade Union is a party on the ground only that such act induces some other person to break a contract of employment or that it is in interference with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or of his labour as he wills. (2) A registered Trade Union shall not be liable in any suit or other legal proceeding in any Civil Court in respect of any tortious act done in contemplation or furtherance of a trade dispute by an agent of the Trade Union if it is proved that such person acted without the knowledge of, or contrary to express instructions given by the executive of the Trade Union." In Jay Engineering Works Ltd's. case (supra) which was heard by a Special Bench of five judges of Calcutta High Court, their Lordships were interpreting the provisions as contained in Sections 17 and 18 of the Trade Unions Act, 1926 which grants certain exemption to members of the Trade Union. Their Lordships have held that there ale no express provisions Suit No. 10/2012 Page No. 11 of 14 in the Trade Unions Act regulating strikes or picketing. But these are recognised weapons in armoury of labour. The word 'strike' in its broad significance has reference to a dispute between employer and his workers in the course of which there is concerted suspension of employment. It is further held : "It is clear, therefore, that no protection is available to the members of a trade union for any agreement to commit an offence. The charge against the employee in the writ petitions now before us is that they committed various offences under the Indian Penal Code mentioned above. The question is whether there was such an agreement among the workers as to exclude them from the immunity afforded by Section 17. When a group of workers. large or small, combined to do an act for the purpose of one common aim or object it must be held that there is an agreement among the workers to do the act and if the act committed is an offence, it must be similarly held that there is an agreement to commit an offence. The materials before us in this writ petition make it abundantly clear that the workers acted in a combination to achieve a common aim or object and it must, therefore, be held that there was an implied agreement among them for the purpose of achieving the common aim. It must also be held that in achieving that common aim they committed offences under the Indian Penal Code and in that view of the matter the immunity created by Section 17 of the Act is not available to the workers, assuming that all of them are members of a registered trade union."
(14) In The Premier Automobils Ltd. v. Kamlekar Shantaram Wadke of Bombay & Others and Automatic Electric Pvt. Ltd. v.
Engineering Mazdoor Sabha & Others, , it was held as under : "The principles applicable to the jurisdiction of the civil court in relation to an industrial dispute may be stated thus : (1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court. (2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy. (3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act. (4) If the right which is sought to be enforced is a right created under the Act such as Chapter Va then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be".
Suit No. 10/2012 Page No. 12 of 14
(15) There is no dispute that the employees can go on a peaceful strike and there can be no interference, except on sufficient grounds. Industrial Disputes Act does not provide remedies in the nature of permanent or temporary injunctions. It appears that the Union resorted to strike after serving statutory notice as provided in Section 22 of the Industrial Disputes Act. It is a legitimate right of the workers to make legitimate demands and, if not met, go on peaceful but legal strike. This right is so recognised under the Labour Laws. Trade Union has a right to pursue its trade union activities by peaceful methods. In M/s. Metal Forgings (P) Ltd., (supra), S.B. Wad, J. has dealt with the similar submissions to the effect that Section 18 of the Trade Unions Act bars the jurisdiction of Civil Courts either to entertain the suit in regard to the trade's dispute or pass an interim injunction order. Wad, J. referred in detail the case law on the subject and has held that the submissions made by the learned counsel appearing for workmen in that case were fully dealt with in the leading judgment of Calcutta High Court in Jay Engineering Works Ltd. and others, (supra). In the judgment it has been held that there is no ouster of jurisdiction of Civil Courts. Industrial Disputes Act does not provide for the remedies in the nature of permanent or temporary injunction.
(16)After applying the law laid down in the aforesaid judgments, I am of the view that plaintiff had made various allegations with regard to act of violence, physical assault, intimidation, threat of physical assault, throwing of soda water bottles and acid bulbs. Plaintiff has also placed on record sufficient documents in support of such allegations. No doubt defendants have denied all these allegations and in the affidavit defendants have stated that there has been no act of violence on the part of the defendants and other members of the Union and that there had been peaceful strike. In any case, when there are allegations of violence made by plaintiff in the plaint and in support of these allegations certain documents have been placed, then I am of the view that this is question which requires investigation. I am of the view that prima facie the suit is maintainable and this court has the jurisdiction to entertain the present suit. However, the fact whether any act of violence has been committed by the defendants and other members of the Union or not shall be decided in the suit. Section 18 of the Trade Unions Act, 1926 is not applicable to the facts and circumstances of the present case.
Suit No. 10/2012 Page No. 13 of 14 Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
17.Relief:
The decree of permanent injunction is passed in favour of the plaintiff and against the defendants from holding any demonstration, dharna, ghero, raising of slogans and from committing violence at 57, Najafgarh Road, Rama Road, N. Delhi 110015. There are no orders as to costs.
Decree sheet be prepared accordingly. File be consigned to the record room after due compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 17.05.2013. Civil Judge/Central05 Delhi Suit No. 10/2012 Page No. 14 of 14