@JUDGMENTTAG-ORDER
F. I. Rebello, J.@mdashDoes the working class of this country have the right to strike in furtherance of their demands when matters are in conciliation before a Conciliation Officer under the Industrial Disputes Act, 1947? Does such a strike which prima facie is deemed to be illegal by virtue of Section 22 or Section 23 of the Industrial Disputes Act confer a right on an employer to move a Civil Court for an injunction in exercise of its jurisdiction u/s 9 of the Code of Civil Procedure, to restrain either the Union or its members from going on strike? The Plaintiffs, a Company under the control of Government of India says ''YES''. If no injunction is granted, it is contended apart from production losses it will be the public who will have to suffer. Not long ago another Government at another point of time had pleaded before the Apex Court that emergency was declared in public interest and in view of that the fundamental rights of citizen as enshrined in Part III of the Constitution of India Stood suspended. That argument had then found favour with the Apex Court. The Written Constitution the fountain head of liberty is once again being asked to make way, for what the Plaintiffs contend is in the larger public interest. It is said that liberty lies In the hearts and minds of men. If it dies there, no Constitution, no Court, no law can save it. No Constitution, no law, no Court can even do much to help it. If that argument of the Plaintiffs Company is accepted, it will not be difficult for the Company to further argue that even the right to a peaceful demonstration can be negated in larger public interest. Courts are the upholders of Constitutional rights and defenders of constitutional values. Will a Court in such circumstances grant an injunction merely because there are aberrations on occasions. Will the cherished right of liberty and democracy be curtailed merely because of these occasional aberrations. And if the arguments of the Plaintiffs are accepted and the injunction is granted, how will the Court enforce such an injunction which will require continuous supervision. Can a workman who is unwilling to work be forced to work? How is the Court to enforce such an injunction? The only possible answer available can be to exercise the contempt jurisdiction and send the recalcitrant workman to jail. Are the Plaintiffs calling on the Court to adopt such a course ?
The employer a Company under the control of the Government of India has filed this suit in a Civil Court to restrain the Defendants - Trade Unions, representing the workers working with the Plaintiffs from going on strike and for other reliefs as sought for in the Plaint. It is the case of the Plaintiffs that they are incorporated under the Companies Act, 1956 and are carrying on business of refining and marketing petroleum products. The Plaintiffs besides being a Government Company are also a public utility enterprises. The Plaintiffs have their registered office at Mumbai at the address shown in the plaint in the cause title and have other offices and establishments all over India including several places in Maharashtra. Defendant Nos. 1 and 2 are registered trade unions having as members large number of workers employed with the Plaintiffs. Plaintiffs from time to time have entered into long term settlement with their workmen. The last such settlement which was entered into on 1st June, 1993 expired on 31st May, 1998. On the earlier long term settlement coming to an end and first charter of demands being presented the Unions having as members, workmen employed by the Plaintiffs were invited for negotiations for entering into the next long term settlement. In order, however, to have effective dialogue and practicable and meaningful negotiations in the All India Meeting for the Long Term Settlement, the Plaintiffs issued notices to the Unions having a minimum of 15% membership of the marketing locations/establishments taken together on all India basis to participate in the discussions. Besides that there was also some other criteria. The Defendants who represent a large number of workmen employed by the Plaintiffs were also invited. The Long Term Settlement dated 1st June, 1993 was terminated on 31st May, 1998 and charter of demands was received from various Unions including Defendants. Some meetings have taken place including three meetings between April and October, 2000. Defendants participated in the meeting in April/August, however, did not attend the meeting held in October, 2000. It is case of the Plaintiffs that the office-bearers of the Defendants informed that they have boycotted the said meeting.
On 17th October. 2000 Plaintiffs were surprised to receive two notices both dated 13th October. 2000. By the said notice the Defendants have given notice u/s 22(1) of the Industrial Disputes Act, 1947 of their intention to resort to appropriate direct action including strike on the expiry of 14 days from the service of the said notice and during the validity of the notice. The Defendant No. 1 while giving reasons has set out that the Defendant No. 1 should be given higher representation in the negotiations. It is the case of the Plaintiffs that in the past they have given equal representations to the other participating unions, in the sense that equal number of persons representative of each union were entitled to attend the meeting. The Plaintiffs, however, with a view to have effective dialogue invited only those unions who met the criteria. If the demands of the Defendant No. 1 is met that they ought to have larger representation, it would amount to discontentment amongst other Unions and also amount to discrimination between the workmen. If the other Unions made similar demands, it would be impossible to hold a proper discussion and negotiations with such a large body. The Notice restricting the participation to larger unions has led to a lot of discontentment amongst the Unions having lesser number of members, compelling the Plaintiffs to file a suit being Suit No. 2489 of 2000 for appropriate reliefs. It is also set out that the notice of strike set out various other reasons which are issues which form a part of the charter of demands. One of the reasons given is delay in settling the issue of wage settlement. It is the case of the Plaintiffs that they have to consider the wage settlement on All India basis on account of large number of participating unions, reasonable time has been taken in the negotiation process. It is contended that none of the reasons as set out in the two strike notices, are such, as to justify the workmen going on strike.
2. It is the case of the Plaintiffs that any strike on their premises has wide safety and public ramifications. Pursuant to the strike notice the demands have been taken in conciliation before the Assistant Labour Commissioner (Central) on 18th October, 2000 and parties have been called for discussions. Inspite of that on 18th October, 2000 the Plaintiffs came to hear a strong rumor that the Defendants were planning a flash strike on 19th October, 2000 in the Western region. No official intimation of the flash strike was given to the Plaintiffs. The Defendants have large number of workmen approximately 2.300 as their members. The effect of flash strike would be to paralyse the working of the Plaintiffs and to cause serious prejudice not only to the Plaintiffs but to the public at large. On intimation by the Plaintiffs to the Asstt. Labour Commissioner (Central) - II, the Asstt. Labour Commissioner wrote to the Defendants by letter of 18th October, 2000 that the issues raised in the aforesaid strike notice dated 13th October, 2000 had already been taken up in conciliation proceedings and the conciliation proceedings have been fixed on 25th October, 2000 and that the workmen should not proceed on strike during pendency of the conciliation, proceedings. It is contended that despite of pending conciliation proceedings the Defendants went on flash strike on 19th October. 2000 at all locations in the Western region and the members of the Defendants did not attend work and the supply and distribution of the petroleum products was totally paralysed across Western region, thereby causing inconvenience to the general public. It is contended that there is a likelihood of clashes between various sections of workmen as other workmen are not supporting the action of Defendants and/or their members. It is the case of the Plaintiffs that in view of the threats given the Plaintiffs apprehend that meetings/demonstrations may be organised by the Defendants outside the offices/establishments which may further cause problem of safety and security. It is contended that the action of proceeding on the flash strike by itself would indicate that the Defendants and their members have already begun to settle the issues by their own hands. The Plaintiffs apprehend that there would be clashes and violence and the situation may go out of control. It is also apprehended that the members of the Defendants may gherao the employees/officers, senior Executives including Directors of the Plaintiffs with a view to pressurize them. Various other averments as set out by the Plaintiffs. It is contended that as the Plaintiffs is a public utility service any disruption in the activities of the Plaintiffs will seriously prejudice the public interest and the interest of various domestic and industrial consumers of petroleum and petroleum products. The Plaintiffs apprehend that the Defendants'' unlawful activities may cause serious disruptions and eventual cessations of work in vital installations and depots and despatch units, etc. and removal of products by transport whether it is a road transport, railway transport, air transport etc. It is contended that stopping of supplies of essential materials is an unlawful form of coercive action. It is pointed out that this Court in the past has granted ad interim injunction. The prayers as therefore prayed for Include damages quantified at Rs. 1 lakh against the Defendants.
A Notice of Motion has been taken out by the Plaintiffs. By the said Notice of Motion Plaintiffs have prayed for an injunction restraining Defendants and their members from proceeding and/or continuing on strike as threatened by Notice dated 13th October, 2000 and for a relief to restrain the Defendants and Its members from obstructing the ingress and egress of any officers, workmen, employees etc. in to and out of the Plain tiffs'' offices, installations, establishments, etc. For a further injunction from holding any meetings, gathering within 500 meters of the gates of any of the aforesaid establishments and from entering upon their premises, gherao, etc. Various other reliefs have also been sought. In support of the Notice of Motion, the Plaintiffs have filed affidavit of one Shri C. M. Ajit Prasad, Manager (Human Resource Services (West)).
3. Both the Defendants have filed their replies to the Notice of Motion, opposing grant of any relief. It is contended that the issue raised in the present suit Is in the nature of industrial dispute as defined under the Industrial Disputes Act and that the suit filed by the Plaintiffs is not maintainable. It is contended that the Plaint suffers from material irregularities, suppression of facts and erroneous legal approach and is liable to be dismissed in limine. It is contended that service conditions of the employees employed by the Plaintiffs are determined and fixed under the Long Term Settlement signed between the Plaintiffs and Representative Unions. Before signing the settlement, the Plaintiffs held negotiations with Representative Unions. It is well recognised mechanism acceptable to both the parties. The Plaintiffs for good reason decided to regulate the negotiation process by inviting only those unions as set out earlier. Reliance is placed on the letter Issued by the Plaintiffs dated 31st March, 2000. As per the decision, 31st March, 2000 was fixed as cut-off date for counting membership of each union. On the said date the Defendant No. 1 was having more membership than prescribed under the decision. Defendant No. 2 was also qualified for participating in the negotiations. Other unions who met the criteria and considered eligible and qualified for participating and negotiating the process were invited. It is contended that as a matter of fact the Defendant Unions, represent 60% and above the workmen of the Plaintiffs. It is contended that as on the said date one M/s. Maharashtra General Kamgar Union, M/s. Bharatiya Kamgar Karmachari Mahasangh and Bharat Petroleum Corporation Employees Union were not having requisite number of membership in the establishment of the Plaintiffs as laid down in the letter of the Plaintiffs dated 31st March, 2000 and therefore they were not considered as eligible and qualified to participate in the Negotiation process. On the basis of the respective members of each union representations were given in the Negotiation Committee. As the aforesaid three Unions were not qualified they were not given representation. The Committee held negotiations in April and August, 2000. The Plaintiffs observed that the Defendants Union are not prepared to accept the service conditions suggested by them. Plaintiffs decided to marginalize the Defendants Unions. As a part of this plan, the Plaintiffs decided to invite unqualified Unions to participate in the Negotiation process. It is contended that, it was not a bona fide action on the part of the Plaintiffs. On the cutoff date the said three Unions were not qualified to participate in the Negotiation Process. Those three Unions are independent Unions and had independently undergone a membership verification process. At no point of time the said Unions claimed that they have formed Federation and that they are affiliated to each other. It is the case of the Plaintiffs that the Defendants on their own suggested to this three Unions to form a Federation so that their claim to participate in the negotiations committee could be considered- Those three Unions formed a Federation in August, 2000. On the cut-off date i.e. 31st March, 2000 the said Federation was not in existence. Similarly, the said Federation did not participate in the earlier meetings. Inspite of all that the Plaintiffs allowed the said Unions to participate in the Negotiation Committee. It is, therefore, contended that the entire action of the Plaintiffs is highly objectionable and suspicious. It is contended that on 3rd August, 2000 at Wadiloop Installation of the Plaintiffs'' Company, the workers were coerced, physically assaulted and threatened with dire consequences by antisocial elements and surprisingly the said antisocial elements were hired by the Plaintiffs itself. These facts were brought to the notice of the Plaintiffs and requested to take preventive measures on that behalf. It is contended that the attitude of the Plaintiffs are very luke-warm. The Defendants have requested the Plaintiffs to look into the grievances and restore peace and harmony in the establishment. The Plaintiffs have not bothered even to acknowledge their grievances. As there was no other way a Notice of strike was given on 13th October, 2000 as provided under the Industrial Disputes Act, 1947. It is contended that the Defendants Union are trying to restore peace and maintain normalcy in the establishment. It is the Plaintiffs who are interested in creating disturbance for the reasons best known to them. The Defendants dented that the flash strike on 19th October. 2000 was organised by Defendants Union. It is contended that there was no strike as defined under the Industrial Disputes Act, 1947. There was obvious and spontaneous reaction of the workers for the ill-treatment meted out to them by the Plaintiffs and irresponsible and unreasonable attitude adopted by them. It is contended that the Plaintiffs were interested to aggravate the trouble in their establishments and therefore they issued orders directing the concerned officer to deduct four days salary for so-called flash strike dated 19th October. 2000. It is contended that assuming that it was a strike the same has not been declared as illegal strike by any Competent Court and so the Plaintiffs had no right to deduct the wages.
It is subsequently averred that Defendants are responsible Unions and are operating in the Plaintiffs'' establishments for number of years. There is not a single incident of industrial sabotage and/or similar nature which could be cited against Defendants union. It is averred that the Police Departments and C.I.D. Departments give report to the Plaintiffs in respect of such incidents, The Defendants pray that this Court direct the Plaintiffs to produce reports before this Court. The Defendants contend that the Union gave the strike notice for the reasons stated therein. The Notice is in accordance with the law. The 14 days time qualifications October, 2000, this by itself would go to show that Defendants Union is a law abiding organisations and do not believe in taking any illegal and unjust action. It is contended that to go on strike is a statutory right available to the workmen and Plaintiffs have no right to prevent them in taking steps which are permissible under the law- To organise the peaceful demonstration for inviting attention of the Plaintiffs towards their grievances is permissible under the Constitution and the Plaintiffs have no right to prevent Defendants from demonstration in the factory premises. It is, therefore, prayed that the Notice of Motion be dismissed with exemplary costs. Documents have been annexed which are correspondence like the notice inviting Defendant No. 1 regarding qualifications for participating in the Negotiating Committee and other documents.
5. To similar effect the affidavit filed by Shri R. S. Raut, the General Secretary of Defendant No. 2. Similar objections have been taken as to maintainability of the Notice of Motion as raised by Defendant No. 1. That there was a flash strike on 19th October paralysing the work of the Plaintiffs has been denied. The other averments are similar to the averments contained in the affidavit of Defendant No. 1 and for that purpose the same are not being reproduced.
6. In support of the contentions that the Plaintiffs are entitled to an injunction, it is the case of the Plaintiffs that the workers right to strike is not a fundamental right nor an individual statutory right. It is common law right which has been recognised by the Court and regularised by the statute in public interest. Right to strike does not flow from any express law. The right to strike does not attach to a trade union per se but attaches to the workers who are members of that Union. No Union as a union simpliciter can go on strike. This is because the union is nothing more than a collective noun, representing as it were, a body of workmen who are its members. Reliance is placed for that purpose on the Judgment in the case of Mumbai Kamgar Sabha v. Abdullaba. It is contended that the Government may under provisions of the Essential Services Act issue a Notification banning strike. In such a case the workers'' common law right to strike is restricted and indeed, prohibited during the continuation of the aforesaid Notification. Similarly, Sections 22 and 23 of the Industrial Disputes Act lay down certain circumstances under which strike may be prohibited. Section 22 is confined to public utility services the prohibition contained in Section 23 is confined to non-public utility services. The legislation clearly places great importance on the circumstances set out in the two sections and as provided, the workers cannot go on the strike nor can an employer refuse to give work. It is, therefore, submitted that it does not take away the hard earned rights of labour but only specifies circumstances during which the legislature does not wish this right to be exercised. It is a reasonable restriction on the civil right to strike. It is contended that bar of the civil suit docs not apply to the facts of this case and consequently the ratio decidedness in the case of Premier Automobiles v. K. S. Wadke, will not apply. Even otherwise, it is contended that in the present suit what is applied for is a limited injunction not to strike and falls within the exemption as set out in the Judgment of Premier Automobiles [supra]. It is contended that the prohibition contained in Section 22 in case of breach can be punished u/s 26. However, the actual ban on illegal strike cannot be enforced by a Reference. At the highest, the employer may seek a further prohibition of an illegal strike u/s 10(3). But it can neither enforce the ban u/s 22 nor the prohibition u/s 10(3} in a Reference. In this situation if the strike is prohibited the employer concerned is entitled to an injunction enforcing such statutory prohibition. It is contended that even if the case of Premier Automobiles (supra) applies, there is no Central Government Industrial Tribunal and in those circum stances the jurisdiction of Civil Court is not ousted. Reliance for that purpose is placed in the Judgment of learned Single Judge of this Court in the case of Sindhu Education Society & Ors. v. Kacharu Jairam Khobragade & Ors.
It is then contended that Section 22 provides that no workman can proceed on strike during the operation of any of the restrictions imposed in sub-clauses (a) to (d). It is contended that this is an enforceable right and therefore Order XXXIX Rule 1 of the CPC would be attracted. Independently, it is contended that the Order XXXIX Rule 2 is attracted because the present suit seeks to restrain the Defendants from committing other injury of any kind.
7. On behalf of the Defendants, it is contended that the right to organise and to demonstrate peacefully is a right recognised under Article 19(l)(c) of the Constitution. It is contended that every person has a right to withhold his labour and therefore workmen have the right to go on a strike which is a weapon available to the employees for enforcing their industrial demands. It is contended that right to strike by implication is a right guaranteed by sub-clause (c) of clause (1) of Article 19 of the Constitution. Reliance is placed on Article 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights. It is then contended that the workmen would have right to withhold their labour as a weapon to bargain and this has been regulated by the Industrial Disputes Act, 1947. The Act defines what the strike is and the circumstances in which it becomes illegal and the consequences of going on illegal strike. It is therefore a complete Code by itself and consequently the jurisdiction of the Civil Court is ousted. In the alternative it is further submitted that even if a civil suit is maintainable what the Plaintiffs were seeking is enforcement of a contract of personal service. Such a contract cannot be specifically enforced and consequently also no relief can be granted. It is then contended that in so far as the Defendants are concerned u/s 18 of the Trade Union Act. 1926 no suit is maintainable against the Union in a situation contemplated by Section 18 of the Trade Union Act. For all the aforesaid reasons, it is contended that there is no merit in the Notice of Motion and it be dismissed. At any rate no ad interim relief can be granted. On merits, it is contended that no case has been made out by the Plaintiffs for granting of interim relief as prayed for.
8. Section 38 of the Specific Reliefs Act contemplates that a perpetual injunction can be granted in favour of the Plaintiffs to prevent the breach of an obligation existing in its favour whether expressly or by implications. If it arises from a contract the Court shall be guided by the rules or provisions in Chapter 2 of the Specific Relief Act. A perpetual injunction can also be granted where the Defendants invade or threats to invade the Plaintiffs right to, or enjoyment of property, an injunction can be granted where the Defendant is trustee of the property for the Plaintiff: where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion or the invasion is such that compensation in money would not afford adequate relief and where injunction is necessary to prevent a multiplicity of judicial proceedings. u/s 41(e) no injunction can be granted to prevent the breach of a contract the performance of which would not be specifically enforced. Under Order XXXIX Rule 1 of the Code of Civil Procedure, injunction can be granted in favour of Plaintiff if it is proved that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree or that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors or that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, in which event the Court can grant injunction as what has been set out in the said rule. Under Order XXXIX Rule 2 if it is a suit for restraining the Defendant from committing breach of contract or other injury of any kind, the Court may grant injunction to restrain the defendant from committing the breach of contract or injury complained of or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. u/s XXXVII of the Specific Relief Act it is set out that the grant of temporary injunction is regulated by the Code of Civil Procedure. It is therefore clear that for a Plaintiff to get an injunction the Plaintiff must make out a case that there is an obligation existing in its favour whether expressly or by implication. Obligation has been defined to mean a duty enforceable under law. Therefore the Plaintiff must first make out a case when it seeks permanent injunction that there is obligation existing in its favour. If that be, the case, then only can it apply for temporary injunction which would be regulated in terms of Order XXXIX of the Code of Civil Procedure.
The nature of the relief sought for are two fold. Prayer (a) is for a declaration that the strike notices dated 13th October, 2000 are illegal and unjustified. Prayer clauses (b) and (d) are to restrain the Defendants from going on strike or carrying out any antisocial activities of any nature whatsoever during strike period. Prayer clause (e) is again 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 notices dated 13th October, 2000. Exhibits "B" and "C" as we have been earlier are the two strike notices given by Defendant Nos. 1 and 2 respectively. In terms of the annexure to the strike notice of Defendant No. 1, it is set out that there is a delay in settling the issue of wage settlement, that there should be rationalization of working hours, filling up of vacancies and job allocations and some other demands. As noted earlier, the Plaintiffs have come to the Court on the contention that strike is a common law right and that being so the Plaintiffs are entitled to the reliefs as prayed. The other reliefs sought are protection of the Officers/employees of the Plaintiffs and to protect the Plaintiffs'' properly. In so far as this relief is concerned, prima facie, there can be no dispute that the Plaintiffs as owner of the property would be entitled not only to the protection of their property but also be entitled to protection of their personnel.
9. We are here concerned with a case where strike notices are given by the Defendants under the provisions of the Industrial Disputes Act, 1947. The questions that emerge are (1) Whether there is any enforceable right in the Plaintiffs? In other words an obligation under which the Plaintiffs can restrain the Defendants and/or their members from going on strike and (2) Considering the provisions of the Industrial Disputes Act, 1947 and the Scheme of the Act, and Section 9 of the Code of Civil Procedure, whether the Civil Court would have jurisdiction to grant injunction?
The right to strike as now understood is an essential element in the principle of collective bargaining. The power of a management to shut down the plant which is inherent in the right of property would not be matched by corresponding power on the side of labour. If the workers could not as the last resort collectively refuse to work they could not bargain collectively. Strike and lock-out therefore constitute the essential elements of bargaining power of the two sides. There can be no equality with the bargaining power of the management without the freedom to strike. In protecting their freedom the law recognises the legitimate expectation of the workers, that they can make use of their collective powers. It corresponds to protection of the legitimate expectation of management that It can use the right of property for the same purpose on its side by declaring a lock out. Even in England the right to strike was not recognised as a common law right. It is a right which has been recognised by law consequent to organisation of labour and the process of collective bargaining. It is a part of concerted industrial action which results in stoppage of work. There are also other concerted industrial actions like go slow, work to rule. etc. which are not strike. A complete denial or severe restriction of the freedom to strike in any country would indicate that the pretence of freedom of organisation exists only on paper. Under the Indian Constitution, Article 19(l)(c) confers a right to form associations or Unions. This right to form associations or unions is subject to reasonable restrictions that may be imposed by law. Our Constitution guarantees the right to form association. Our Constitution guarantees the right to form associations, not for gregarious pleasure, but to fight effectively for the redressal of grievances. Our Constitution is sensitive to workers'' rights. Our story of freedom and social emancipation led by the Father of the Nation has evolved, from the highest of motives, combined action to resist evil and to right wrong even if it meant loss of business profits.
10. With the above background let us consider the issues involved. In Rohtas Industries Ltd. and Anr. v. Rohtas industries Staff Union and Ors., Krishna Iyer. J. has observed as under :-
"Since the Act which creates rights and remedies has to be considered as one homogenous whole, it has to be regarded uno flat .in one breath, as it were. On this doctrinal basis, the remedy for the illegal strike (a concept which is the creature not of the common law hut of Section 24 of the Act) has to be sought exclusively in Section 26 of the Act....."
It is, therefore, clear that in so far as an illegal strike is concerned it is a creature of statute and not of the common law. If that be the case, then what is the right that the Plaintiffs have, to come to this Court to contend that Defendants are not entitled to go on an illegal strike and that the Civil Court would have jurisdiction to injunction such a Defendant from going on strike. At this juncture we may note Article 8 of the International Covenant on Economic. Social and Cultural Rights to which India is a party, recognises under Article 8(1)(d) the following :-
"The right to strike, provided that it is exercised in conformity with the laws of the particular country."
The European Economic Country is preparing its Charter which seeks to include the freedom to strike as a fundamental right. Reference is made earlier to the International Covenant as the Apex Court has now recognised that International Conventions are enforceable in Municipal Courts as long as they are not in conflict with the Municipal Law. This is more so in respect of Fundamental rights.
Section 18 of the Trade Unions Act recognises that no suit or other legal proceedings shall be maintainable in any Civil Court against any registered union or any office-bearers or members thereof in respect of any act done in contemplation of or furtherance of the trade dispute to which a member of the trade union is a party on the ground that only 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. Section 18 also provides that the registered trade union shall not be liable in any suit or other legal proceedings in any Civil Court in respect of any tortuous 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.
11. What the Plaintiffs are seeking is an injunction to restrain Defendants and their members from going on an illegal strike. It must be borne in mind that it is contended on behalf of the Plaintiffs that the right to strike is not a fundamental right. On the other hand it is the contention of the Defendants that right to strike is a fundamental right. At this stage I do not think that the said issue needs to be gone into as in Radhey Shyam Sharma v. Post Master General, Central Circle, Nagpur and Ors., the Apex Court was seized of the issue as to whether the right to strike is a fundamental right and an Ordinance that prohibited strike would therefore be violative of the fundamental rights. In answering the issue, the Apex Court has held that perusal of the Article 19(1) would show that there is no fundamental right to strike. Considering the International Convention referred to earlier and development of Law, this issue may be considered subsequently. Even, then I have to examine as to what is a concept of strike and from where it flows. Article 19(1)(c) confers right on citizens to form associations or unions. Section 8 of the Trade Unions Act confers a power on the Registrar to register a trade union by making entries in a register to be maintained in such form. u/s 13 every registered Trade Unions is a body corporate by the name under which it is registered and have perpetual succession and a common seal with power to acquire and hold both movable and immovable property and to contract, and shall by the said name sue and be sued. The history of the Trade Unions movement would show that it arose from the circumstances that an individual workman vis-a-vis his master or the management was without any bargaining power. The relationship between the master and servant was purely contractual in nature. It is in these circumstances that the necessity to form unions arose, in order to enable them to voice demand and grievances of the labour. Trade Unions are the mouth piece of labour. A trade union in an industry or a workshop having substantial membership would be in an effective position to bargain with management. This power of collective bargaining would be reduced if it did not include the power to demonstrate. Strike is recognised as only a form of demonstration. The right to demonstrate and therefore the right to strike is an important weapon in the armoury of the labour. This right has been recognised by all democratic countries. It is, however, subject to restrictions in our country that would be found under Sections 10(3). 10A(4-A), 22 and 23 of the Industrial Disputes Act, 1947. There are demonstration which would fall within the freedom guaranteed by Articles 19(1)(a) and 19(1)(b). A peaceful and ordinary demonstration would fall within the freedom guaranteed under these clause. A violent and dis-ordinary demonstration would not obviously be within Article 19(1)(a) or 19(1)(b). See Kameshwar Prasad v. State of Bihar. A learned Judge of the Kerata High Court in the case of Gwalior Rayons Silk Mfg. (Weaving) Co. Ltd. and Anr. v. District Collector, Alleppey and Ors., has observed that though under the Constitution of India the right to strike is not a fundamental right as such, it is open to a citizen to go on strike or withhold his labour. Workers in any democratic State have right to resort to strike when they are so pleased in order to express their grievances or to make certain demands. A strike in the circumstances is a necessary safety valve in industrial relations. It is a legitimate weapon in the matter of industrial relationship. In Engineering & Metal Workers Union v. M/s. Shah. & Sanghi & Anr., a learned Judge of this Court has observed that the strike simpliciter cannot be regarded per se as coercive activity on the part of the unions or workmen qua the employer. The learned Judge held that considering the observation of the Apex Court in Rohtas Industries Ltd. (supra) that the concept of illegal strike is a creation of statute and the observations would seem to suggest that apart from illegality which is created by the statutory provision, a strike cannot be regarded as obnoxious, perverse or coercive. That it may hurt the purse of the employer is beside the question, because that indeed is the object of a strike. Again referring to the judgment in the case of Rohtas Industries Ltd. (supra), the learned Judge held that the restriction on the right of strike or circumstances which would render it illegal strike must be found in the statute and therefore would not seem to exist de hors the enactment. In that case the learned Judge was considering whether an interim injunction could be given u/s 30(2) of the M. R. T. U. & P. U. L. P. Act to restrain employee from participating in a strike which is apparently an illegal strike prior to the stage of making a declaration about the alleged illegal strike u/s 25 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The Court declined to grant an injunction before a declaration was given.
12. Having said so, the next question which emerges is, if the strike were not made illegal and If there was no Industrial Disputes Act, 1947, could a Civil Court have granted injunction to restrain the workmen or a union from resorting to strike. If there was no Act, the relationship between an employer and the employee would be of master and servant and the suit if filed by the master against the servant for specific performance of the contract for personal service, no relief of Injunction would be granted as the relief in such a matter is compensation by way of damages. In Halsbury''s Laws of England, Fourth Edition, Volume 44 at page 407, it is stated as under:-
"Contracts for personal work or services. A Judgment for specific performance of a contract for personal work or services Is not pronounced, either at the suit of the employer or the employee. The Court does not seek to compel persons against their will to maintain continuous personal and confidential relations. However, this rule is not absolute and without exception. It has been held that an employed may be restrained from dismissing an employee in breach of contract if there is no loss of confidence between employer and employee or if fat least in a contract of employment to carry out a public duty) the employee has been dismissed in a manner which does not comply with statutory or contractual regulations governing dismissing all. No Court may, whether by way of an order or specific performance of a contract of employment or an injunction restraining a breach or threatened breach of such a contract compel an employee to do any work or attend at any place for the doing of any work. ....."
It is, therefore, clear that the contract of employment cannot ordinarily be specifically enforced by or against employer. The well known exceptions in relationship of employee and employer are cases governed by (1) Article 311 of the Constitution (2) provisions of Industrial law and (3) violation of breach of mandatory provisions of a statute by a statutory breach. The above paragraph has been approved and quoted by the Apex Court in the case of Nandganj Sihori Sugar Co. Ltd. and Anr. v. Badrinath Dixit and Ors. To the same effect reference could also be made to the Judgment of the Apex Court in the case of Sitaram Kashiram Konda v. Pigment Cakes and Chemicals Mfg. Co. where the Apex Court has held that the suit filed by the Plaintiffs for reinstatement would not be maintainable in a Civil Court as the main relief prayed for if granted would amount to specific performance of a contract of service. To the same effect are the observations of the Apex Court in the case of Executive Committee of U. P. State Warehousing Corporation, Lucknow v. Chandra Kiran Tyagi. There the Court found after examining the provisions of Section 21 of the Specific Relief Act that the contract could not be performed and answer would be by way of damages. It is, therefore, clear that the Civil Court would not specifically enforce a contract of employment.
13. We then come to the issue as to whether the relief as prayed for by the Plaintiffs before the Civil Court would be maintainable. The lest for exclusion of the jurisdiction of the Civil Court under the Industrial Disputes Act, 1947 has been considered in the case of The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and Ors. The Apex Court has laid down four broad principles which includes that (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 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 case; (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, and (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. The Court also observed that adjudication of an industrial dispute in connection with a right to obligation under the general, or common law and not created under the Act the remedy is not exclusive, it is alternative. In Raja Ram Kumar Bhargava (dead) by L.Rs. v. Union of India, while examining the Judgment of Premier Automobiles (supra), the Apex Court has observed as under :-
"Generally speaking, the broad guiding considerations are that wherever a right, not pre-existing in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the Civil Courts jurisdiction is impliedly barred. If, however, a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the Civil Court''s Jurisdiction, then both the common law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence. To what extent, and on what areas and under what circumstances and conditions, the Civil Courts jurisdiction is preserved even where there is an express clause excluding their jurisdiction, are considered in Dhulabhai''s case."
This view can be supported by a different process of reasoning. As pointed out earlier in case of an Injunction preventing the workman going on strike, that really is in the nature of a mandatory direction to the workman to continue to serve the employer. Can the Court direct such an unwilling employee who in pursuit of his demand refuses to work ? The Legislature recognizing this position that the Courts would not be in a position to continuously supervise, whether the workman is working or not, has chosen to make such a workman who goes on an illegal strike punishable for a criminal offence. If the workman is found guilty he will be convicted and suffer the consequences of such a conviction. Secondly, if the workman goes on an illegal strike it will also amount to a misconduct for which the employer under the Standing Orders can take suitable action by way of imposing punishment. The workman further if he refuses to work can be denied wages for such period of continuation of illegal strike. These are purely statutory creations aimed at enforcing legislative intent of putting restrictions on the workers'' right to strike. It is, therefore, clear that the ouster of civil jurisdiction has been provided for as the Industrial Disputes Act, 1947 itself contains the mechanism for imposing punishment on a workman who goes on strike in violation of provisions of the Act.
14. In so far as illegal strike is concerned the issue is no longer res integra and the issue has been settled in Rohtas Industries (supra). The Apex Court has held that an illegal strike is a creation of the Act. The Industrial Disputes Act is a comprehensive and self contained Code. The enforcement of rights created thereby can only be through the procedure laid down therein. Neither the Civil Court or any other Tribunal or body can award relief. Proceeding further the Apex Court observed as under :-
"Since the Act which creates rights and remedies has to be considered as one homogenous whole, it has to be regarded uno flatu, in one breath, as it were. On this doctrinal basis, the remedy for the illegal strike (a concept which is the creature not of the common law but of Section 24 of the Act) has to be sought exclusively in Section 26 of the Act. ....."
It is, therefore, clear that in so far as an illegal strike is concerned, the remedy is not one founded in common law. It is a right created by the Industrial Disputes Act and the remedy provided for it is under the Industrial Disputes Act and can only be enforced u/s 26 of the Act.
15. In passing I may refer to the Judgment relied upon by the Plaintiffs in the case of All India Bank Employees'' Association and Ors. v. National Industrial Tribunal and Ors. I need not refer at length to that Judgment. Suffice it to say that an amendment brought to the Banking Companies Act was sought to be challenged on the ground that it was violative of the right of the Union to strike. This was negated by the Apex Court. In Syndicate Bank and Anr. v. K. Umesh Nayak & Ors. the Apex Court has observed that the strike as a weapon was 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. It is a use by the labour of their economic power to bring the employer to see and meet their view-point over the dispute between them. The issue therein was entirely different, as to whether a strike or lock-out which was legal initially, its continuation would be illegal and thereto some observations were made. That judgment need not detain us.
16. It was next contended that as there are no Officers appointed to man the Tribunals, the Civil Court would retain jurisdiction. The Defendants disputes the same, by stating that there is a functioning Tribunal in Nagpur. Whatever may be the case, the dispute is an all India Dispute. There can be no difficulty in the Central Government referring the dispute to a Central Tribunal which is functioning. So much for the crocodile tears of the employer herein. If the Government of India cannot refer the dispute to a functioning Tribunal, what must the workers do ? The argument that on this count the Civil Court has jurisdiction must be rejected.
17. Reliance was placed on the Judgment of the Single Judge of the Delhi High Court in the case of Indian Oil Corporation v. Oil Sector Officers'' Association, to contend that Civil Court has Jurisdiction. From a consideration of that Judgment, it is apparent that it was only an interim injunction and the issues considered over here were not considered by the learned Single Judge of the Delhi High Court. My attention is also invited to the order of a learned Judge (Nijjar, J.) of this Court in Bharat Petroleum Corporation Ltd., v. Petroleum Employees Union and Ors. and the order of the learned Judge (A. M. Khanwilkar, J.J of this Court in Bombay Suburban Electric Supply Ltd. v. Bombay Electrical Workers Union and Ors. where interim injunctions were granted. A perusal thereof would also indicate that the issues considered here were not considered therein. Contrary to this view is the view of another learned Single Judge (D. K. Deshmukh. J.) of this Court in Indian Airlines Ltd. v. Air Corporation Employees Union and Ann. passed in order wherein the learned Judge has taken a view that the Civil Court would not have jurisdiction to restrain the workers in exercising their statutory right which are recognised by the Industrial Disputes Act.
Considering the above, to my mind, clearly therefore a civil suit seeking an injunction to restrain the Defendants or their members would not be maintainable on the ground that the strike is illegal and as proceedings in conciliation are pending. As explained by the Apex Court in Rohtas Industries (supra) an illegal strike is a creation of the statute and the remedy thereto is also provided by the statute.
18. It was then contended that the interest of public are affected and consequently also the Plaintiffs can maintain the suit. It is no doubt true that the strike is bound to affect either production or supply of petroleum products. In the instant case, the Plaintiffs have come forward by this suit to ventilate their own grievances as the owner of the establishment wherein the members of the Defendants are employed. A suit by the Plaintiffs is not for ascertaining any fundamental right in them to restrain the Defendants from going on a strike. As canvassed by the Plaintiffs therefore the right to strike is not a fundamental right. It is either a weapon evolved by the workers as a form of a direct action during their long struggle against the employers. It is a part of the collective bargaining process. The Industrial Disputes Act, 1947 recognises and regulates thus by making a strike illegal under certain circumstances. Even though, therefore, the public at large may suffer, if there is an obstruction to supply of essential supplies that cannot be a ground to restrain the Defendants, from asking its members to strike work as the dispute of the Defendants is not against the public at large but against the Plaintiffs as already set out earlier which is purely a commercial undertaking interested in its profits. In the matter of strike therefore, neither Order XXXIX Rule 1 or Order XXXIX Rule 2 of the CPC would be attracted warranting grant of a temporary injunction as contemplated by Section 37 of the Specific Relief Act. The Notice of Motion in so far as the grant of injunction as set out in prayer clause (a) (1) would not be maintainable and would therefore require to be dismissed on the ground that there is no cause of action in the Plaintiffs to maintain a suit on that count.
19. In so far as other prayer clauses are concerned, they are consequential to a strike. There is till date no strike. The Defendants have filed their reply denying that they have caused any loss to the Employer or have indulged in violence. These pleas have not been deemed. Therefore, at least today on the pleadings as they stand it will not be possible to grant any relief in terms of prayer clauses a(2) to a(5) as that would be premature. As pointed out earlier the right of peaceful demonstration is a fundamental right of citizens, including workers. It is only where the demonstration becomes violent or the like that the Court may intervene. Considering that no case is made out for ad interim relief in terms of prayer clauses a(2) to a(5). However, liberty to the Plaintiffs to apply in the event there is a strike and their rights to the properly or protection of its officer is affected. The matter then can be considered on its own merits.
20. Defendant waive service.
21. Notice of Motion made returnable after eight weeks. To be placed on board on its own turn.
All parties concerned to act on the ordinary copy of this order duly authenticated by the Associate of this Court.
P. A. to give copy of this order to the parties concerned.
22. Certified Copy expedited.
