2001(1) ALL MR 872
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.N. SRIKRISHNA AND R.P. DESAI, JJ.
Bharat Petroleum Corporation Limited Vs. Petroleum Employees' Union & Anr.
Appeal (Lodging) No. 1088 of 2000,Notice of Motion No. 3148 of 2000,Suit No. 4498 of 2000
24th November, 2000
Petitioner Counsel: Mr.J.P. CAMA, Mr.BIRENDRA SARAF, Mr.GURUMOORTHY, Crawford Bayley & Co.
Respondent Counsel: Mr.K.K.SINGHVI, Mr.S.S.PAKALE
Industrial Disputes Act (1947), Ss.2(n), 22,24 - Trade Unions Act (1926), Ss.17,18 - Civil P.C. (1908), S.9, O.39, R 1 and 2 - Right to Strike - Negative obligation imposed on workmen by S.22 does not tantamount to positive right in favour of employer - Right to strike is not conferred either in Constitution or by any other statute - Statute only seeks to restrict inherent right in every individual in the larger interest of society - Relief in the form of permanent injunction and interim relief is not beyond jurisdiction of Tribunal - Hence civil suit to restrain employees from going on strike cannot be brought in civil court.
A Civil suit to restrain the employees from going on a strike, irrespective of whether the proposed strike is legal or illegal under a special statute, cannot be brought in a civil Court. 1996 (II) LLJ 52 or 2000 (85) FLR 144 Dissented from. [Para 36]
There are two difficulties in accepting the contention that the negative obligation imposed on workmen by Section 22 amounts to a positive right in favour of the employer, the employer is entitled to enforce those rights by resorting to action in civil court. In the first place, every obligation may not create a corresponding right in any particular or specific person. Often times statutes prescribed obligations, that too in a negative manner, which are intended for the benefit of the public at large. These are obligations owed to the society as a whole. No one person is entitled to say that they crate a right in his favour. If at all, it is for the society at large or the body politic to enforce them. A Suit by any individual to enforce such an obligation in public domain would not be entertainable. [Para 18]
An obligation owed to the community at large cannot be enforced by an individual on the footing that he is a part of the community at large. [Para 20]
The obligations of a workman or Trade Union contemplated by Section 22 are obligations in realm, enforceable by the society at large. The only manner in which the statute contemplates their enforcement is indicated in Section 26 of the Act which prescribes a penalty for any workman who commences, continues or otherwise acts in furtherance of a strike which is illegal under the Act, the penalty being imprisonment for a term which may extend to one month or with fine which may extend to fifty rupees, or with both. In the entire body of the Industrial Disputes Act, there is neither any indication, or provision of the manner in which the obligations under Section 22 are to be enforced. [Para 21]
The obligation not to go on strike, without following the prescribed steps, even assuming it is enforceable at the instance of an individual, is an obligation not arising from the general law of contract, nor common law. This is an obligation which is prescribed under a special statute, namely, Industrial Disputes Act, 1947. There is no reason why this cannot constitute an "industrial dispute" within the meaning of Section 2(k) of the Industrial Disputes Act, 1947. [Para 23]
The right to go on strike is not conferred either by the Constitution or by any other statute. On the other hand, statute recognises this as inherent right to every human being who has to render service to another, but seeks to restrict it in the larger interests of society. 1961 II LLJ 385 Ref. [Para 28]
Reading of the two Schedules appended to the Act in conjunction with the definition of expression "industrial dispute" defined in Section 2(k) of the Industrial Disputes Act, it is not possible to accept the contention that a relief in the form of permanent injunction is beyond the jurisdiction of the Tribunal upon a properly worded reference. Maybe it takes time to get the relief, but the relief is possible. The wheels of gods grind exceedingly slow; but they grind exceedingly fine. So is the case with Industrial Tribunals. [Para 31]
It cannot be contended that there is no power in the Industrial Tribunal to grant interim relief. In the first place, the definition of the expression "Award" under Section 2(b) of the Industrial Disputes Act, 1947 includes an interim determination of any industrial dispute or of any question relating thereto by the Tribunal. Further, the power of an Industrial Tribunal under Section 10(4) to adjudicate on matters "incidental" to the points of dispute referred for adjudication would conceivably include its power to grant interim relief. (1959) II LLJ 544 Ref. [Para 31]
The Thana Borough Municipality, Thana vs. Akbaralli Hassanally, Vol.LVIII, 1955, BLR 636 [Para 19]
Doe vs. Bridges, (1831) 1 B. & Ad. 847 [Para 19]
Grand Junction Waterworks Company vs. Hampton Urban Council, (1898) 2 Ch. 331 [Para 20]
Pasmore vs. Oswaldtwistle Urban Council, (1898) A.C. 387 [Para 20]
Ashok Kumar Srivastav vs. National Insurance Company Ltd. & ors., (1998) 4 SCC 361 [Para 22]
Dhulabhai vs. State of M.P., AIR 1969 SC 78 [Para 23]
Premier Automobiles Limited vs. Kamlakar Shantaram Wadke, AIR 1975 SC 2238 [Para 23]
Rajasthan State Road Transport Corporation vs. Krishna Kant, AIR 1995 SC 1715 [Para 23]
Rohtas Industries Staff Union vs. State of Bihar, AIR 1963 PATNA 170 [Para 24]
Rohtas Industries Ltd. vs. Rohtas Industries Staff Union, AIR 1976 SC 425 [Para 24]
Standard Chartered Bank vs. Chartered Bank Employees Union (Regd.) & Ors., 1996 (II) LLJ 52 [Para 26]
Indian Oil Corporation vs. Oil Sector Officers' Association, 2000 (85) FLR 144 [Para 27]
All-India Bank Employees' Association vs. National Industrial Tribunal, 1961 II LLJ 385 [Para 28]
Syndicate Bank vs. K. Umesh Nayak, AIR 1995 SC 319 [Para 29]
Hotel Imperial vs. Hotel Workers Union, (1959) II LLJ 544 [Para 31]
Manager, Jaipur Syntex Ltd. vs. P.O.Industrial Tribunal, (1990) I LLJ 323 [Para 31]
Delhi Cloth & General Mills Ltd. vs. Rameshwar Dayal, Additional Industries Tribunal [Para 31]
Samee Khan vs. Bindu Khan, AIR 1998 SC 2765 [Para 32]
Sm.Parul Bala Roy vs. Srinibash Chowmal & ors., AIR (39) 1952 CAL. 364 [Para 33]
Kishore Chand vs. Budaun Electric Supply Co., AIR (31) 1944 ALL. 66 [Para 33]
Jay Engineering Works vs. State of West Bengal, AIR 1968 CALCUTTA 407 [Para 34]
Federation of Western India Cine Employees vs. Filmalaya Private Ltd., VOL.LXXXIII, BLR 423 [Para 35]
2. This Appeal is directed against the order of the learned Single Judge dated 15th November 2000 rejecting prayer clause (a)(i) made in the Notice of Motion taken out by the Appellant. Though the Appeal came up before us for admission, considering the importance of the issues that were raised up in the Appeal, we have heard the Counsel on both sides at length and propose to dispose of this Appeal finally by a judgment at this stage itself.
3. The Appellant is an industry engaged in the manufacture of petroleum products including Liquified Petroleum Gas (LPG). It employs a large number of workmen in its establishments engaged in manufacturing and distribution of its products. The Appellant Corporation, a Government Company, had entered into a long term settlement prescribing the conditions of service of its workmen. This long term settlement was to last for five years from 1st June 1993 to 31st May 1998. After expiry of the said settlement, the Respondent Unions, which represent the workmen of the Appellant, submitted a fresh Charter of Demands. There was a series of meetings to negotiate the demands put forward by the workmen, but no settlement could be finalised. On 13th October 2000 the Respondent Unions issued a strike notice under Section 22(1) of the Industrial Disputes Act, 1947 informing the Appellant that the Respondent Unions propose to call upon the workmen concerned to resort to an appropriate direct action of any type, including strike of any duration and nature, on the expiry of the 14th day from service of the notice, for the reasons explained in the annexure to the strike notice. The annexure to the strike notice indicates a number of pending demands of the workmen and also alleges an unjustifiable delay in holding negotiations on the part of the Appellant Corporation. This strike notice was received by the Appellant on 17th October 2000. As required under the provisions of the Industrial Disputes Act, 1947, a copy of the strike notice was endorsed simultaneously to the Central Government Conciliation Officer. The Assistant Commissioner of Labour (Central Government), Mumbai, took the strike notice under conciliation on 18th October 2000 and issued a letter calling upon the Respondents to restrain the workmen from proceeding on any strike as their demands were under conciliation. On 19th October 2000, the Respondent Unions and its members went on a flash strike at all the locations in the Western region as a consequence of which the supply and distribution of petroleum products was disrupted resulting in inconvenience to the public.
4. The Appellant by now realised that, notwithstanding the provisions of Section 22 of the Industrial Disputes Act, 1947, the workmen and the Unions proposed to continue to strike despite the pending conciliation proceedings.
5. On 20th October 2000, the Appellant filed a Suit in this Court being Suit No.4498 of 2000 and took out therein the Notice of Motion for ad-interim reliefs. On 23rd October 2000 (just on the eve of Diwali holidays) the Notice of Motion was urgently moved before the learned Vacation Judge and the learned Vacation Judge recorded the statement of the Advocate for the Unions that the member-workmen of the Respondent Unions would not resort to any go-slow or strike during Diwali festival days and that their industrial action would be kept in abeyance till 7th November 2000. The Notice of Motion was placed on Board for hearing on 6th November 2000 on such a statement being made by the learned Advocate for the Respondent Unions.
7. On 15th November 2000, the learned Single Judge made an order declining urgent reliefs to the Appellant in terms of clause (a)(i), but granted liberty to apply for reliefs in terms of prayer clauses (a)(ii) to (a)(vii) in case the workmen resorted to actions as contemplated in the said prayer clauses. An application was moved by the Counsel for the Appellant that the statement which was made by the learned Advocate for the Trade Unions on 23rd October 2000 before the learned Vacation Judge be extended, but this prayer was rejected by the learned Single Judge.
8. We are informed that the text of the order of the learned Single Judge is not yet available, though Counsel on both sides are agreed that the main reason why the learned Single Judge was inclined to reject prayer clause (a)(i) in the Notice of Motion was lack of jurisdiction. Counsel on both sides have also argued this Appeal on the said issue. Counsel for the Appellant attempted to persuade us that the Civil Court could grant the relief sought for in the Suit as well as in the Notice of Motion by prayer clause (a)(i). This is the issue which we have heard at length and which we propose to decide by this judgment.
"(a) That this Hon'ble Court be pleased to declare that strike notice dated 13th October 2000 (Exbs. B & C hereto) issued by the Defendants are illegal and unjustified strike.
(b) That in any event and without prejudice to (a) above, the Defendants be restrained from in any event going on strike or carrying out agitational activities of any nature whatsoever during the strike notice period of the notices at Exhibits "B" & "C" and during such time as the matter is seized in conciliation or any Reference arising therefrom.
(c) That this Hon'ble Court be pleased to decree the Defendants jointly and severally to pay to the Plaintiffs an amount of Rs.1,00,000/- as per the particulars of claim at Exhibit "E" hereto including interest @ 12% per annum from the date of the suit till the payment and/or realisation;
(d) That this Hon'ble Court be pleased to restrain the Defendants and their members by a permanent order and injunction from going on illegal and unjustified strike as threatened in the strike notice dated 13th October 2000 (Exbs. B & C hereto)".
"(a) That pending the hearing and final disposal of the Suit, this Hon'ble Court be pleased to restrain the Defendants, and their members from :
(i) Proceeding and/or continuing on strike as threatened by the notices dated 13th October, 2000 at Exhibit "B" and "C" hereto.
(ii) In any manner obstructing the ingress & egress of any officers, workmen, employees, managerial or administrative personnel, customers or any person dealing with the Plaintiffs into and out of the Plaintiffs' offices, Installations, Aviation Stations, LPG Plants, administrative buildings, Bharat Bhavan No.1 & 2, which are enlisted at Exhibit "A" hereto.
(iii) Holding any meetings, gathering in number, shouting slogans, staging any demonstrations at the plaintiffs offices, Installations, Aviation Stations, LPG Plants, administrative buildings, Bharat Bhavan No.1 & 2, which are enlisted at Exhibit "A" hereto or any other premises of the Plaintiffs or within 500 metres of the gates of any of the aforesaid establishments/premises.
(iv) From entering upon any of the premises/establishments of the Plaintiffs except for the legitimate purpose of carrying out their normal duties.
(v) From gheraoing or causing any obstruction or hindrance and intimidating and insulting in any manner any officer, visitors or employees of the Plaintiffs.
(vi) Displaying posters or sticking any banners, posters, pamphlets, placards, containing derogatory or offensive language upon or within the Plaintiffs' premises listed at Exhibit "A" hereto.
(vii) Obstructing in any manner free movements of any vehicle, loyal employees, officers, servants and agents into and from any of the premises/establishments of the Plaintiffs which are enlisted at Exhibit "A" hereto. "
11. Mr.Singhvi, learned Counsel for the Respondent Unions, strongly opposed any relief being granted to the Appellant in the Appeal. He urged that it is well settled, for more than fifty years, that the Civil Courts had no jurisdiction to grant any relief which would amount to enforcement of a contract of employment or which would trench upon the exclusive jurisdiction conferred upon Industrial Tribunals by special statutes. On the other hand, it is the submission of Mr.Cama, learned Counsel for the Appellant, that notwithstanding the enactment of a special statute like the Industrial Disputes Act, the jurisdiction of the Civil Court to entertain a Suit, to restrain workmen from going on illegal strike in breach of their obligations imposed on them by the Industrial Disputes Act, was not barred; therefore, the Suit was maintainable and the relief sought in the Notice of Motion ought to have been granted without being rejected as without jurisdiction. Both learned Counsel have referred to a number of authorities to which we shall shortly advert.
12. Mr.Singhvi submitted that going on a strike means consorted withdrawal of labour, which might have amounted to the tort of conspiracy to commit breach of contract under the common law and might have been actionable in common law. But, the provisions of the Industrial Disputes Act over-ride the provisions of the common law. Further, under Sections 17 and 18 of the Trade Unions Act, 1926, immunity was specially conferred upon the Trade Unions against the consequence ensuing when they were acting in furtherance of trade dispute as defined in the said Act. Hence, he urged that it is not open to a Civil Court to discard or disregard this immunity and injunct a Trade Union in the teeth of the law which has been consistently laid down from early forties, both in England as well as in this country.
13. It is true that, in common law, if a number of employees in concert and combination withdraw their labour and decide not to work, it would amount to a breach of contract as a result of conspiracy to commit breach of contract which was actionable in common law. Because employers repeatedly obtained restraint orders from Civil Courts by alleging the tort of conspiracy to commit breach of contract, and Civil Court frequently issued such restraint orders, it became necessary, both in England and in India, for the Legislature to step in to protect the nascent Trade Union movement. At the relevant point of time, the workmen were unorganised, both in England and in India. Trade Unions were in a state of infancy. If, at that stage, injunction orders restrained workmen from acting in concert or combine or doing acts in furtherance of their trade disputes, collective bargaining might have died prematurely. As a matter of policy, the Legislature enacted specific immunity in the concerned Trade Union legislation with a view to grant protection against stifling of Trade Union activity. Section 17 of the Trade Unions Act, 1926 grants specific immunity to members of a registered Trade Union from punishment under Section 120-B of the Indian Penal Code against the offence of conspiracy in respect of an agreement between the members of the Trade Union for the purpose of furthering any object of the Trade Union as specified in Section 15, unless the agreement is an agreement to commit an offence. Section 18 grants immunity from civil suits to office bearers of the Trade Union or members 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 such other person or with the right of some other person to dispose of his capital or of his labour as he wills. Section 15 enumerates a long list of objects for which Trade Unions may function and one of them, inter alia, is the conduct of trade dispute on behalf of the Trade Union or any members thereof. The expression "trade dispute" is defined in Section 2(g) of the Trade Unions Act, 1926 as any dispute between employers and workmen, or between workmen and workmen, or between employers and employers, which is connected with the employment or non-employment, or the terms of employment or the conditions of labour of any person. The expression "workmen" is defined as all persons employed in trade or industry, whether or not in the employment of the employer with whom the trade dispute arises. The laws encouraging organisation of Trade Unions and giving protection to collective bargaining, which were to be found in the Trade Unions Act, 1926, grew and became stringent with the passing of the Bombay Industrial Disputes Act, 1936 followed by the Bombay Industrial Relations Act, 1946, which were applicable in the then Bombay Province. At about this time, the Central Legislature considered it necessary to enact suitable legislation which would apply all over the country and that is how the Industrial Disputes Act, 1947 was brought on the statute book.
14. The Industrial Disputes Act, 1947, (hereinafter referred to as the "1947 Act") is enacted to make provisions for the investigation and settlement of industrial disputes and for certain other purposes indicated in the preamble to the 1947 Act. Examination of the provisions of the 1947 Act indicates that the Act was brought on the statute book to ensure that collective bargaining did not get out of hand so as to injure the interest of the society. The collective bargaining had to be carried out between industry and workmen subject to the restrictions and regulations placed thereupon by the 1947 Act. As long as the collective bargaining is within the framework of the statute, the statute does not interfere with the collective bargaining and it is upto the parties to pull their collective strengths so as to bring about an industrial settlement. The central theme of the Act is that, apart from the two players in the arena, i.e. capital and labour, society also has a stake in the fallout. As long as the fall out of collective bargaining should not injure the interests of society, the society must remain neutral and should not enter the arena of collective bargaining. The society is, of course, represented by the "Appropriate Government" under the statute.
15. With this background of the 1947 Act, we shall now examine some of its provisions which exude this policy. "Strike" is defined in Section 2(q) as cessation of work by a body of persons employed in any industry acting in combination, or a concerned refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment. Correspondingly, Section 2(1) defines "lock-out", which is the corresponding industrial action on the part of the employer of shutting out the workmen from work and refusing to continue the employ any number of persons employed by it. In both cases, the withdrawal of labour by workmen, or refusal of work by the employer, is carried out with a view to forcing the other party to come to terms. Strike and lock-out are often described as weapons in the armoury of collective bargaining, albeit of last resort. One wonders whether in these days of non-profiltration treaties, these weapons should rather be defused and permanently put out of action. However, that is a matter of policy for Parliament to decide.
16. Having defined "strike" and "lock-out", the Act prohibits resort to strike or lock-out without following the procedure prescribed. Section 22 makes a distinction between the ordinary industrial establishment and what is known as a "public utility service". The definition of "public utility service" covers most of the public service industries, though it is competent to the Government to declare as a public utility service certain types of other industries which are indicated in the First Schedule to the Act. It is not in dispute that the Appellant has been declared as a "public utility service" within the meaning of Section 2(n) of the 1947 Act. With regard to workmen employed in public utility services, the Industrial Disputes Act, 1947 imposes a restriction on their right to strike : (a) without giving to the employer notice of strike in the prescribed manner within six weeks before strike; (b) within fourteen days of giving such notice; (c) before the expiry of the date of strike specified in any such notice and (d) during the pendency of any conciliation proceedings before a Conciliation Officer and seven days after the conclusion of such proceedings. Corresponding restrictions on the right of lock-out of a public utility service are to be found in sub-section (2) of Section 22. Section 23 makes similar restrictions with reference to strikes and lock-outs in non-public utility service industries, with which we are not presently concerned. Then we have Section 24 which declares a strike or a lock-out to be illegal if it is commenced or declared in contravention of Sections 22 or 23. Under sub-section (3) of Section 10 of the 1947 Act, the Appropriate Government is empowered to refer an industrial dispute between an industry and its workmen and simultaneously prohibit commencement or continuance of a strike or lock-out in such industries.
17. With these provisions of the statute in the background, we shall now take up for consideration the contentions urged by the learned Counsel on both sides. Mr.Cama, learned Counsel for the Appellant, contended that the Industrial Disputes Act, 1947 specifically provides in Section 22 that the workmen cannot go on strike without taking the steps indicated in the said Section and further that Section 24 declares a strike commenced and declared in contravention of Section 22 to be illegal. He urges that, in the instant case, the workmen commenced a strike within fourteen days of the giving of the notice and are also threatening to go on strike even during the pendency of the conciliation proceedings. The negative obligation imposed on the workmen by Section 22 amounts to a positive right in favour of the employer; the employer is entitled to enforce those rights by resorting to action in a Civil Court, in the submission of the learned Counsel.
18. There are two difficulties in the way of accepting the contention urged by the learned Counsel. In the first place, every obligation may not create a corresponding right in any particular or specific person. Often times statutes prescribed obligations, that too in a negative manner, which are intended for the benefit of the public at large. These are obligations owed to the society as a whole. No one person is entitled to say that they create a right in his favour. If at all, it is for the society at large or the body politic to enforce them. A Suit by any individual to enforce such an obligation in public domain would not be entertainable.
19. In this connection we may usefully refer to the judgment of a learned Single Judge of this Court in The Thana Borough Municipality, Thana v. Akbaralli Hassanally, Vol.LVIII, 1955, BLR 636. Under the Bombay Municipal Boroughs Act, there was a prohibition against unathorised construction of buildings in the Bombay Municipal area. The Bombay Municipality filed a criminal complaint against a property owner who had carried out unauthorised construction of a building in contravention of the applicable buildings laws. Not being satisfied with the complaint, the Municipality also filed a Suit against the Respondent under Section 204 of the said Act and sought an injunction from the Civil Court to restrain the Respondent from occupying the constructed building, either by himself or by as a tenant or through a tenant, and for a direction for forthwith demolition of the unauthorised construction. The Suit was sought to be maintained by the Municipality on the contention that the Respondent had built the construction without obtaining any permission from it or in violation of its bye-laws and, therefore, the right of the Municipality to regulate the building construction in its area had been affected prejudicially. Hence, it was contended that the Suit was maintainable under Section 204 of the Act. This Court categorically rejected this contention and held that there was no right in the Municipality correlative to the obligation upon the Respondent not to build without its permission or in contravention of its bye-laws and, therefore, the Municipality could not maintain the Civil Suit. The oft repeated observations of Lord Tenterden in Doe v. Bridges, (1831) 1 B. & Ad. 847, were quoted with approval by the learned Judge, "....where an Act creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner." It was held in the aforesaid case that the performance could have been enforced by a criminal action and not by any other manner.
20. Though the rule was stated somewhat generally in Doe (supra), and was further extended by the Chancery Court in England in Grand Junction Waterworks Company v. Hampton Urban Council, (1898) 2 Ch. 331, Lord Macnaghten entered a caveat in Pasmore v. Oswaldtwistle Urban Council, (1898) A.C. 387, and observed, : "The law is stated nowhere more clearly or, I think, more accurately, than by Lord Tenterden in the passage cited by my noble and learned friend on the woolsack. Whether, the general rule is to prevail, or an exception to the general rule is to be admitted, must depend on the scope and language of the Act which creates the obligation and on considerations of policy and convenience". Particularly with reference to the rights of a local authority to bring such action, it was pointed out by this Court that, in England whenever there was a building erected without obtaining permission from the local authority, or in contravention of the bye-laws made by it, it had always been observed that the local authority is not entitled to sue because none of its rights were affected, though in a civil case such a right was vested in the Attorney-General. This Court also referred to the following passages from Halsbury's Laws of England, Vol. I, 3rd Edn., pages 8-9:
"Wherever a person (which would include a Corporation) has a private 'right' (i.e. not merely a right enjoyed by him in common with the community at large) he may in general maintain an action against any other person who infringes it, and that without proving actual damage.
Where the right infringed is a public right, the appropriate remedy is by proceedings of a public nature, i.e. indictment or an action by the Attorney-General as the guardian of public rights;...."
Where the statute provides for a remedy other than an action, the prevailing rule is stated in these words :
"...In general, where a penalty is imposed for the breach of a statutory obligation, no action will lie at the suit of the person injured by the breach, but where it appears that the duty is imposed for the benefit of particular persons, there arises at common law a correlative right of action in such persons if they are injured by its breach; ..."
In our view, the law has been succinctly and correctly laid down in this case to the effect that an obligation owed to the community at large cannot be enforced by an individual on the footing that he is a part of the community at large.
21. Turning to the statute before us, the obligations of a workman or Trade Union contemplated by Section 22 are obligations in realm, enforceable by the society at large. The only manner in which the statute contemplates their enforcement is indicated in Section 26 of the Act which prescribes a penalty for any workman who commences, continues or otherwise acts in furtherance of a strike which is illegal under the Act, the penalty being imprisonment for a term which may extend to one month or with fine which may extend to fifty rupees, or with both. In the entire body of the Industrial Disputes Act, there is neither any indication, or provision of the manner in which the obligations under Section 22 are to be enforced.
22. Mr.Cama urged that a Civil Court has jurisdiction to enforce all obligations, particularly laying emphasis on Section 38 of the Specific Relief Act, 1963. He also referred to the judgment of the Supreme Court in Ashok Kumar Srivastav v. National Insurance Company Ltd. and others, (1998) 4 SCC 361, where it was pointed out that Section 34 of the Specific Relief Act is enough to open the corridors of Civil Courts to admit Suits filed for a variety of declaratory reliefs and that the declaratory reliefs referred to in Section 34 were not exhaustive. It was also pointed out by the Supreme Court that with regard to a Suit relating to contract, even if a Suit was not maintainable under Section 14 of the Act, the powers of the Court to grant a declaratory relief under Section 34 was not shut out in view of the wide language used in Section 34 of the Act. The case before the Supreme Court was one where the Appellant had filed a Suit in the trial Court for a declaration that the notice of termination of his service was illegal and void and that he continued to be in service with the Company with all benefits flowing from it and such Suit was contested on the ground of jurisdiction. In our view, this judgment does not really carry the matter in favour of the Appellant. May be that Section 34 does not exhaust the categories of declaratory decrees that could be made by a Civil Court, and a Suit on a contract which is not specifically enforceable by virtue of a bar by Section 14 may become a subject matter of a declaratory decree under Section 34, as indicated by the Supreme Court. However, there is a larger objection on principle which needs to be considered, even if the Suit for a declaration of the nature sought was entertainable notwithstanding the provisions of Section 14 of the Specific Relief Act, 1963.
23. The contest between the jurisdiction of a Civil Court and a special Tribunal constituted under a special statute to entertain causes of action has been the subject matter of discussion in Dhulabhai v. State of M.P., AIR 1969 SC 78, Premier Automobiles Limited v. Kamlakar Shantaram Wadke, AIR 1975 SC 2238 and Rajasthan State Road Transport Corporation v. Krishna Kant, AIR 1995 SC 1715. In Rajasthan (supra) the Supreme Court considered the previous judgments, particularly its judgment in Premier Automobiles (supra) and finally laid down the law in the form of the following propositions :
" (1) Where the dispute arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an "industrial dispute" within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947.
(2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act.
(3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946 - which can be called 'sister enactments' to Industrial Disputes Act - and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2-A of industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open.
(4) It is not correct to say that the remedies provided by the industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate government. The power to make a reference conferred upon the government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.
(5) Consistent with the policy of law aforesaid, we commend to the Parliament and the State Legislature to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly - i.e. without the requirement of a reference by the Government - in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.
(6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to "statutory provisions". Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the Civil Court where recourse to Civil Court is open according to the principles indicated herein.
(7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and un-encumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to Civil Courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute."
Mr.Cama contends that his case falls within propositions (1) and (3). It is difficult to accept this submission. The obligation not to go on strike, without following the prescribed steps, even assuming it is enforceable at the instance of an individual, is an obligation not arising from the general law of contract, nor common law. This is an obligation which is prescribed under a special statute, namely, Industrial Disputes Act, 1947. We see no reason why this cannot constitute an "industrial dispute" within the meaning of Section 2(k) of the Industrial Disputes Act, 1947. In proposition (2) (supra), the Supreme Court clearly ruled out resort to a Civil Suit in such a case, and pointed that where the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act. Not only did the Supreme Court rule out resort to Civil Courts in such a situation, but it also pointed out in proposition (3) that even where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like sister statutes, if the dispute is one which amounts to an "industrial dispute" within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, or where the relevant statute says that it may be treated as an industrial dispute, then it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Where this is not so, recourse to Civil Court is open. Finally, in proposition (4) (supra), the Supreme Court emphatically rejected the argument, which Mr.Cama reiterates, that the Industrial Disputes Act is fully, or not equally, effective for the reason that access to such forum depends upon the reference being made by the appropriate Government. The contention of Mr.Cama is that, in a situation faced by the Appellant, approaching the Industrial Tribunal would not be immediately possible, because of the necessity of an order of reference by the appropriate Government, and further that the Industrial Tribunal may not have the power to grant interim relief by way of preventive injunction. We will assume that these are practical difficulties in obtaining preventive injunction from the Tribunal. Nonetheless, as pointed out both in Premier Automobiles (supra) and in Rajasthan State Road Transport Corporation (supra), if the obligation or right is one not available in common law, or under the general law of contract, but created under a specific statute, then the forum under the statute ought to be approached, however inconvenient, impracticable or cumbersome the procedure prescribed under the statute is. In other words, recourse to litigation before a Civil Court is firmly barred.
24. In this connection, it will be useful to refer some of the judgments cited by Mr.Singhvi on the subject of Civil Court's jurisdiction. In Rohtas Industries Staff Union v. State of Bihar, AIR 1963 PATNA 170, an award in an arbitration under Section 10-A of the Industrial Disputes Act was made, inter alia, on the issue as to whether damages were payable by workmen for their resorting to strike and certain acts done in furtherance of their trade dispute. The Division Bench of the Patna High Court came to the conclusion that the award made by the Arbitrators was illegal for two reasons : (1) a claim for damages against workmen was not an industrial dispute capable of being referred under Section 10A of the Industrial Disputes Act. (2) A claim of the nature preferred against the workmen was wholly barred by the provisions of Section 18 of the Trade Unions Act. The High Court traced out the history of Trade Union in England, the manner in which immunity against the tort of conspiracy for breach of contract was granted in respect of acts in furtherance of trade disputes in England. Then it referred to the enactment of corresponding law in the Indian Trade Unions Act, 1926 and pointed out that similar immunity had been granted to Trade Unions and their members acting in furtherance of a trade dispute. Even if the fallout meant a drastic consequence to the employer, the immunity under Sections 18 or 17 is not dislodged. It was specifically argued in this case that the strike resorted by the workmen was illegal and, therefore, the immunity was not available. This contention was in terms negatived by the Division Bench of the Patna High Court. The judgment of the Patna High Court came up in appeal before the Supreme Court in Rohtas Industries Ltd. v. Rohtas Industries Staff Union, AIR 1976 SC 425. The Supreme Court upheld the judgment of the Patna High Court and confirmed the reasoning of the High Court. It also went into the English common law as to the tort of conspiracy and pointed out that, even when there are mixed motives, liability will depend on ascertaining which is the predominant object or the true motive or the real purpose of the Defendant. A mere combination or action, even if it be by illegal strike, would not amount to conspiracy in the sense of the law because, in all such cases, except in conceivably exceptional instances, the object or motive is to advance the workers' interests or to steal a march over a rival union, but never, or rarely, to destroy or damage the industry. In felicitous words of the learned Judge who delivered the judgment (Justice Krishna Iyer), "... It is difficult to fancy workers who live by working in the industry combing to kill the goose that lays the golden eggs. ...". This judgment, without doubt, lays down that, irrespective of the legality of the strike, the immunity in Sections 17 and 18 would enure to the benefit of the Trade Unions, their office bearers and their members as long as their acts are in furtherance of the legitimate objective recognised by the Trade Unions Act, 1926, namely, a trade dispute.
25. Mr.Singhvi points out that even if one were to take the inconceivable view that the strike of the workmen amounts to a public nuisance and a suit could be brought under Section 91 of the Civil Procedure Code, it could be done either by Advocate-General or by the leave of the Court. Neither contingency is fulfilled in the present Suit and, therefore, the Suit is not maintainable. We are not in a position to accede to the argument that a strike, albeit illegal, on the part of the workmen in the public utility service causing disruption of public work, would amount to "public nuisance" in the sense in which it is understood in common law. In any event, it is fairly pointed out by the Appellant's Counsel that they are not placing any reliance on Section 91 of the Civil Procedure Code. So we need no longer pursue our discussions in this direction.
26. Mr.Cama cited certain judgments and contended that these judgments, on which he relied, showed that even in a situation such as the one before us, Civil Courts have exercised jurisdiction and granted preventive relief. In Standard Chartered Bank v. Chartered Bank Employees Union (Regd.) & Ors., 1996 (II) LLJ 52, a learned Judge of the Delhi High Court granted an ad-interim injunction restraining the employees' Union from instigating and abetting other employees and resorting to strike, shouting slogans, etc. The learned Single Judge proceeded on the footing that the right to strike is neither fundamental, nor absolute, since restrictions are to be found thereupon in Sections 10(3), 10A(4A), 22 and 23 of the Industrial Disputes Act, 1947 and, even if the workmen had a right to go on strike, they could not exercise the said right so as to cause nuisance to the employer, as the right to go on strike was not unlimited. Most of the reliefs pertained to holding demonstrations, circulating and displaying pamphlets or any other material, putting up of pamphlets and banners on the property of the Bank, raising slogans or preventing ingress and egress of any office bearer, members of the staff and customers of the plaintiff Bank. The Union and the workmen were restrained from instigating, abetting other employees to resort to strike by an ad-interim injunction. Similarly, an ad-interim injunction restrained them from resorting to strike without compliance of Section 22(1) of the Industrial Disputes Act, 1947. We are extremely doubtful whether the injunctions could have been granted with regard to resort to or instigation of strike, legal or illegal, in view of the observations of the Supreme Court in Rohtas's case (supra). In any event, these were ad-interim injunctions and it is well settled law that ad-interim injunctions do not make precedents.
27. Another judgment that was brought to our notice is Indian Oil Corporation v. Oil Sector Officers' Association, 2000 (85) FLR 144. In this case also an ad-interim injunction was granted, inter alia, to restrain employees and the Union from going on a strike in contravention of the provisions of Section 22(d) of the Industrial Disputes Act, 1947. We are unable to accept the correctness of this view, with respect, for both reasons as already indicated earlier.
28. Mr.Cama then referred to the judgment in All-India Bank Employees' Association v. National Industrial Tribunal, 1961 II LLJ 385, to highlight that the right to go on strike is not a fundamental right and that the Supreme Court has pointed out that it is not even a statutory right, but a right which is limited by the statute subject to the restrictions under the statute. That is correct. The right to go on strike is not conferred either by the Constitution or by any other statute. On the other hand, statute recognises this as inherent right to every human being who has to render service to another, but seeks to restrict it in the larger interests of society.
29. In Syndicate Bank v. K. Umesh Nayak, AIR 1995 SC 319, the Supreme Court opined out that though strike was a weapon evolved by the workers as a form of direct action during their long struggle with the employers, it is essentially a weapon of last resort being an abnormal aspect of the employer-employee relationship and involves withdrawal of labour disrupting production, services and the running of the enterprise. Hence, the Supreme Court pointed out that industrial legislation, while not denying the right of workmen to strike, has tried to regulate it along with the right of the employer to lock out and has also provided a machinery for peaceful investigation, settlement, arbitration and adjudication of the disputes between them. Where such industrial legislation is not applicable, the contract of employment and the service rules and regulations, many times, provide for a suitable machinery for resolution of such disputes. In such circumstances, where a machinery for resolution of the industrial dispute is available either under the statute or contract or regulation, the Supreme Court opined that resort to a strike or lock-out as a direct action is, prima facie, unjustified. Under certain circumstances, if the provisions of a statute are breached, it may also be illegal. The question mooted before us today in the Appeal is not whether the strike resorted to by the Respondent Unions and the workmen represented by them is illegal or unjustified. Maybe an appropriate forum might hold the strike to be illegal, unreasonable and unjustified, and give appropriate reliefs to the Appellant employer. The question before us really is whether the Civil Court is the appropriate forum to decide these issues. In our view, the answer must be an emphatic negative.
30. Mr.Cama made a grievance and said that the Industrial Disputes Act is no remedy at all or, at the highest, it is an ineffective remedy, because the Industrial Tribunal, even assuming a reference by an appropriate Government, can only grant relief as contemplated under Section 10 and no more which does not include the relief of permanent injunction.
31. Under Section 7-A of the Industrial Disputes Act, an Industrial Tribunal is constituted with such jurisdiction as to entertain industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule, and for performing such other functions as may be assigned to them under the Act. Reading of the two Schedules appended to the Act in conjunction with the definition of expression "industrial dispute" defined in Section 2(k) of the Industrial Disputes Act, it is not possible for us to accept the contention of the learned Counsel that a relief in the form of permanent injunction is beyond the jurisdiction of the Tribunal upon a properly worded reference. Maybe it takes time to get the relief, but the relief is possible. The wheels of gods grind exceedingly slow; but they grind exceedingly fine. So is the case with Industrial Tribunals. It is contended by Mr.Cama that there is no power in the Industrial Tribunal to grant interim relief. This argument is without substance. In the first place, the definition of the expression "Award" under Section 2(b) of the Industrial Disputes Act, 1947 includes an interim determination of any industrial dispute or of any question relating thereto by the Tribunal. Further, the power of an Industrial Tribunal under Section 10(4) to adjudicate on matters "incidental" to the points of dispute referred for adjudication would conceivably include its power to grant interim relief. That the Tribunal has jurisdiction to grant interim relief in a Reference is no longer in doubt in view of the decision of the Supreme Court in Hotel Imperial v. Hotel Workers Union, (1959) II LLJ 544. (see also the judgment of the Rajasthan High Court in Manager, Jaipur Syntex Ltd. v. P.O.Industrial Tribunal, (1990) I LLJ 323, and the judgment of the Supreme Court in Delhi Cloth & General Mills Ltd. v. Rameshwar Dayal, Additional Industrial Tribunal, (1960) II LLJ 712 in this connection).
32. Mr.Cama cited the judgment of the Supreme Court in Samme Khan v. Bindu Khan, AIR 1998 SC 2765, which we find is hardly applicable to the facts before us. When we asked Mr. Cama the purpose of citing this judgment, he referred to the observations in paragraph 15 that the words in a statute are to be interpreted in a manner so as not to lead to an anomalous situation. We do not think that we are carrying on an interpretative exercise leading to an anomalous situation; we are treading the path trodden by the Supreme Court to say that Civil Courts have no jurisdiction in such disputes. This is restatement of the law already laid down.
33. The case in Sm.Parul Bala Roy v. Srinibash Chowmal and others, AIR (39) 1952 CALCUTTA 364, was cited by the learned Counsel for the Appellant to show that Section 3 of the Specific Relief Act gives wide import to the word "obligation" which means any duty enforceable by law and not confined to contractual obligations only. An injunction founded on torts, on breach of trust, or on the breach of any other legal duty can therefore be granted provided the other circumstances are present. Though this was a judgment under the earlier Act of 1877, Mr.Cama contends that the same principle is applicable while interpreting Section 38 of the Specific Relief Act, 1963. The proposition is unexceptionable; but, as we have already pointed out, Specific Relief Act is not the only Act one looks at while deciding whether the Civil Court has jurisdiction. To same effect, is pressed the judgment in Kishore Chand v. Budaun Electric Supply Co., AIR (31) 1944 ALLAHABAD 66.
34. The judgment of the Special Bench of the Calcutta High Court in Jay Engineering Works v. State of West Bengal, AIR 1968 CALCUTTA 407, was cited to impress upon us that Sections 17 and 18 of the Indian Trade Unions Act grant only limited immunity which does not inure against violence, criminal trespass or other criminal acts. We have no doubts whatsoever as regards this proposition. Section 17 of the Trade Unions Act grants a limited immunity against the criminal conspiracy under Section 120-B of the Indian Penal Code and there is no immunity as far as other Sections are concerned. If the Trade Unions, their office bearers or members indulge in other criminal offences, they are as much answerable as any other person and cannot plead the immunity under Section 18 as a bar to the prosecution.
35. The judgment in Federation of Western India Cine Employees v. Filmalaya Private Ltd., VOL.LXXXIII, BLR 423, was cited to show the limits to the immunity granted under Section 18 of the Trade Unions Act. This judgment cites with approval the judgment in Jai Engineering (supra) and holds that, if under the applicable statues a criminal offence other than the one contemplated under Section 120-B is committed, immunity under Section 18 of the Trade Unions Act does not inure in favour of the offender.
36. On a conspectus of all the judgments cited, and against the background of the concerned statutes to which we have made a reference, we are of the considered view that a civil Suit to restrain the employees from going on a strike, irrespective of whether the proposed strike is legal or illegal under a special statute, cannot be brought in a Civil Court. Consequently, prayer clause (a)(i) in the Notice of Motion was beyond the jurisdiction of this Court. The learned Single Judge was, therefore, right and justified in rejecting the said prayer. As to the other prayers in clauses (a)(ii) to (a)(vii) of the Notice of Motion, the learned Single Judge has granted liberty to the Appellant-Plaintiff to move at an appropriate stage.